Oral Answers to Questions

FOREIGN AND COMMONWEALTH AFFAIRS

The Secretary of State was asked—

Africa

Hugh Bayley: What recent bilateral meetings the Government have had with other G8 countries about Africa.

Chris Mullin: Africa is regularly discussed with other G8 Governments, and the Prime Minister recently discussed Africa with President Bush and President Chirac. There have been a range of other contacts at ministerial and official level. We expect these to intensify next year, when Africa will be a priority for our G8 presidency.

Hugh Bayley: If the Commission for Africa is going to trigger a substantial policy change towards Africa from a number of G8 countries, it would be wrong to wait until the G8 summit occurs to seek commitments. During the period between the publication of the commission's report and the G8 summit, we want a series of commitments to be made by our G8 partners to intensify the aid to, and other political links with, Africa. Will that be happening and what are the Government doing to ensure that we get the response we want from our G8 partners?

Chris Mullin: An extensive consultation programme is going on at the moment, with precisely that in mind. We expect the Commission for Africa to produce clear recommendations on how the international community can strengthen support for Africa's development. We are encouraging our G8 partners to contribute their views to the consultation. Our aim, of course, is to move Africa up the agenda during our presidencies of the European Union and the G8.

David Chidgey: Given American policy not to support the New Partnership for Africa's Development, can the Minister tell us what compromises have been necessary to get the United States to support the Prime Minister's Commission for Africa?

Chris Mullin: The Americans are very supportive of the Commission for Africa. I should say as well that they have, in recent years during George Bush's presidency, greatly increased their commitment to aid for Africa and also to the battle against AIDS. Their aid has been targeted specifically at 15 countries, where the most progress is being made and where the largest problem exists, 12 of which are in sub-Saharan Africa.

Jane Griffiths: Will the Minister, during his deliberations on Africa, reflect on the African success story that is last week's presidential and parliamentary elections in Ghana, where there was an undisputed winner and no real concerns about the conduct of the election? Will he highlight that in future discussions?

Chris Mullin: Yes; my hon. Friend, who I think has just come back from monitoring the election in Ghana, is quite right to draw attention to what was a very successful election last week. Improving governance in Africa is one of the key objectives of all those who wish Africa well. The improvements in the democratic process that have taken place in Ghana are an example to all other African states, and I commend them.

Patrick Cormack: That is very well, and we agree with the Minister on it, but what hope can he offer the people of Zimbabwe?

Chris Mullin: The people of Zimbabwe are, regrettably, at the mercy of a very rotten Government, as the hon. Gentleman knows. We have played a leading part in the EU and the United Nations in bringing international pressure such as can be brought on that Government, but it is true that, for the immediate future, the prospects in Zimbabwe are not good. We have hopes, however, that in the longer term there will be a return to democratic rule and the rule of law in Zimbabwe. We will continue to do everything in our power to achieve that.

Cuba

Jim Sheridan: What representations he has made to the US Administration on the future of Cuba.

Douglas Alexander: Policy towards Cuba is regularly discussed with the US Administration. The US and the UK share the same goal—peaceful transition towards a pluralist democracy that respects human rights—but we differ in approach. Our position, as set out in the 1996 EU common position, which is well understood by the US, is that constructive engagement and dialogue, rather than isolation, are the best means of realising a better future for the people of Cuba.

Jim Sheridan: I thank my hon. Friend for that positive response. Does he agree that many of my constituents now see Cuba as an ideal holiday resort and that, when visiting there, they will see the consequences of the US embargo on that country? Will he use his good offices to encourage the US Administration to stretch out the hand of peace and reconciliation to the good people of Cuba and offer them some hope and support for the future?

Douglas Alexander: Not least because my hon. Friend and I have adjacent constituencies, I fully appreciate the difference in climates between West Renfrewshire and the Caribbean, particularly at this time of year. I therefore take his point. We do not believe that sanctions offer the most effective means of promoting the transition to a pluralist democracy in Cuba, and I assure him that we make known our objections against the United States embargo every year at the United Nations. Indeed, on 28 October 2004, we again voted to adopt the resolution on the necessity of ending the economic, commercial and financial embargo imposed by the United States against Cuba.

Gary Streeter: At least we know where the Minister will now be spending Christmas. But have the Government pointed out gently to our American friends that it is hardly an incentive to Cuba to improve its human rights record for the United States to continue to incarcerate, without access to due process of law, hundreds of detainees right on its doorstep in Guantanamo Bay? Is not it time that the US Administration set a better example in their own backyard?

Douglas Alexander: The Government's position in relation to Guantanamo Bay is well established. We are continuing our dialogue and discussion with the United States. No Government have done more to secure the release of their own citizens as detainees from Guantanamo Bay than the British Government, and I assure the hon. Gentleman that the matter is the subject of continued discussions with the American Administration.

George Foulkes: What are the Spanish and French up to in relation to Cuba? They appear to be flouting the EU common position. Surely that cannot be the case. Can the Minister assure me that the French and Spanish are adhering to the EU common position, and that that common position will be reviewed as quickly as possible?

Douglas Alexander: When my right hon. Friend asked what the Spanish and the French were up to, I thought that it was a general question; I am relieved that it was focused specifically on Cuba. A general evaluation of policy on Cuba is under way in order to re-evaluate the EU common position, and I assure him that the United Kingdom is fully engaged in those discussions, but no decision has yet been made. He may be thinking of the fact that the Cuban authorities have unfrozen the diplomatic representation of the Spanish in Havana, but that was a decision taken by the Cuban authorities rather than by the European Union.

Simon Hughes: Will the Minister assure the House again that the Government will continue to make sure that the American Administration understand that the world will not be satisfied until there is an independently acceptable system of criminal justice for those in Guantanamo Bay, and that the Cuban Government understand that their criminal justice system, too, must comply with the same internationally acceptable standards?

Douglas Alexander: I know of the hon. Gentleman's long-standing interest and concern in relation to these human rights matters. In relation to Guantanamo Bay, I assure him that that thinking underlay the British Government's approach and the discussions that have taken place at the highest level between the British Government and the American Administration. Also in relation to human rights, a number of key treaties and undertakings have not been accepted by the Cuban Government. The Cuban Government clearly understand our position: along with our European Union partners, we want to see real and significant progress in relation to human rights.

Tyrannical Regimes

Graham Allen: What progress there has been in the last month in developing international law and the structure of the UN to end tyrannical regimes.

Jack Straw: The Government have long worked for the reform of the United Nations system, and for that reason we greatly welcomed the publication of the report last month from the United Nations Secretary-General's High-level Panel on Threats, Challenges and Change. This report offered two options for reform of the Security Council, and also proposed new approaches to the use by the Security Council of its chapter VII powers, including a self-denying ordinance on the use of the veto in cases of genocide and large-scale human rights abuses, and observations on the use of force preventively to stop latent threats becoming imminent. I shall reproduce the UN report as a Command Paper to the House, better to assist debate.

Graham Allen: I hope that my right hon. Friend the Foreign Secretary will feel that there is no more important task on his agenda over the next year or so than trying to ensure, while not going over old ground, that we do not repeat any of the problems that the legality of action against previous tyrannies brought before the world and, indeed, this House. Will he accept that there is now an opportunity, given events in the last two or three weeks, to make real progress on developing a global legal system that will allow all of us to unite when faced with tyrannies and re-create the global coalition against terrorism on a sound legal basis?

Jack Straw: I share my hon. Friend's views on this matter. Having read the report carefully, I believe that if it had existed and been adopted by the international community a decade ago, some of the major problems that we faced in securing agreement—for example, in respect of Kosovo, earlier; in respect of the genocide that was taking place in Bosnia; and in respect of Iraq—could almost certainly have been avoided. The report does not propose changes to the charter itself. They would be virtually impossible to achieve, except those relating to membership of the Security Council. It does, however, propose major changes in, as it were, the jurisprudence of the United Nations.
	We are fully behind the report and want a full debate about it, which is why I shall be making it available to the House. I hope that there will be a big input from both sides of this House and the House of Lords.

Michael Ancram: Is not the most significant element of the report the UN's recognition for the first time—alongside the established doctrines of self-defence and imminent threat—of the concept, mentioned by the Foreign Secretary, of what it calls prevention? Does the right hon. Gentleman, like me, welcome the UN's engagement with the need for a responsible doctrine of pre-emption, which is what that means?
	Does not the European Union's current flirtation with lifting the embargo on arms sales to China fly in the face of that new consensus? It sets Europe against the United States and threatens the cohesion of NATO. Surely, in the face of growing threats from tyrannical regimes and a growing need for international co-operation, the Foreign Secretary will refuse to sign up to the lifting of the embargo at this time.

Jack Straw: I do not accept the hyperbolic phrases used by the right hon. and learned Gentleman. Circumstances have changed since 1989, when the embargo was imposed. In any event, its scope is limited and it has no legal force.
	A key circumstance has changed during the intervening period. Following an initiative by my predecessor, my right hon. Friend the Member for Livingston (Mr. Cook), we now have a legally enforceable EU code of conduct on arms sales. More denials to China have taken place under that than have taken place under the embargo, and all but two of the denials under the embargo would have taken place in any event under the code of conduct.
	I hope that we will not make a decision on the lifting of the embargo at the European Council on Thursday and Friday. We need more time before putting all the arrangements in place. The European Council's General Affairs Committee agreed yesterday that we should seek a strengthening of the code of conduct, and also greater transparency between member states, to reassure everyone including our allies.
	I entirely agree with the right hon. and learned Gentleman's first point. I refer Members to an important passage in paragraph 194 of the report. According to the panel,
	"the international community does have to be concerned about nightmare scenarios combining terrorists, weapons of mass destruction and irresponsible States, and much more besides, which may conceivably justify the use of force, not just reactively but preventatively and before a latent threat becomes imminent."

Malcolm Savidge: Will the Government impress on the Bush Administration that trying to undermine the International Criminal Court—not least by trying to blackmail small and poor states into bilateral agreements—contrasts starkly with their pretensions to spread democracy, human rights and justice?

Jack Straw: The United States has taken a different view on the International Criminal Court from the United Kingdom Government and the European Union. We are four-square in support of the ICC. I can reassure my hon. Friend that a resolution which I think began as Security Council resolution 1414, sponsored by the United States, has now been allowed to lapse.

Menzies Campbell: I am sure that in the debate to come the Foreign Secretary will recognise the distinction between prevention and pre-emption, which is an extremely important doctrinal distinction.
	I think that the whole House can welcome the High-level Panel's report, not least because it manages to be both balanced and authoritative. How can we ensure that it does not suffer the fate suffered by similar reports in the past, and find itself gathering dust in the archives of the United Nations? We have, after all, been here before.
	Will the Foreign Secretary take this opportunity to confirm Her Majesty's Government's continuing support for the Secretary-General, Kofi Annan, and to deprecate the efforts of some across the Atlantic to undermine his authority?

Jack Straw: I am grateful to the right hon. and learned Gentleman for his last point. I am delighted to confirm Her Majesty's Government's full-hearted support for Secretary-General Kofi Annan and his staff in the United Nations, and to emphasise the importance of the UN at the centre of our whole system of international order. The UN is not a perfect organisation, but it is essential and it is also essential that we support it. On whether this report will bite the dust or be taken forward, Secretary-General Kofi Annan, whom I spoke to last Friday, is determined that it should be implemented effectively, and that is our determination too. There is now a period of consultation within the UN system, and Kofi Annan hopes to make a further report to the UN General Assembly during its ministerial week in September of next year.

Clive Soley: The Secretary of State will know that I am a very strong supporter of the UN High-level Panel and his efforts to publicise it, but can we make absolutely clear the importance of this debate to the future of the world? We need to understand that the United Nations has been and will remain in danger of becoming a second League of Nations unless it can act more effectively against tyrannies in failing states, and in reforming the Security Council to make it more relevant to today's needs. This issue is of vital importance.

Jack Straw: I entirely agree with my hon. Friend, and I commend his work and that of my hon. Friend the Member for Cynon Valley (Ann Clwyd). She had an important input into our thinking and consequently into the UN's, and the result is some of the report's recommendations, not least those in chapter VII. The key point about the report is that it emphasises the way in which the world has significantly changed since the charter was developed almost 60 years ago. The threats then were primarily from sovereign functioning states; today, they are primarily from failing states, terrorism and weapons of mass destruction.
	In addition to the list of things mentioned by my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), I should point to one striking table in the report, which correlates civil wars and disruption with levels of income per head. There is a direct link between those states in which income per head is less than $1,000 a year, and those that are vulnerable to civil war.

Sudan

Helen Jones: What steps he is taking to encourage African states to send more peacekeepers to the Darfur region.

Chris Mullin: We are in close touch with the African Union and other members of the international community about the AU mission in Darfur. We fully support the AU's decision to expand the mission from 500 troops to more than 3,000. In recent weeks, approximately 400 additional troops have arrived, and a further 400 are expected shortly. The UK is providing more than £14 million to aid the mission's expansion.

Helen Jones: I am grateful to my hon. Friend for that answer. Given the urgency of the situation in Darfur, can he tell the House what discussions have taken place on broadening the AU mission's remit? Has he had any discussions with our EU partners about the support that they could provide for the mission? Rather than bemoaning the fate of the people in Darfur, can we not encourage people to get on with doing something about it?

Chris Mullin: On the last point, a number of our EU partners are already making substantial contributions. For example, the Dutch and the Germans are providing the AU force with communications equipment, and the Canadians—I accept that Canada is not in the EU—are providing helicopter support. With all due respect to my hon. Friend, the mandate is not the primary problem, as the existing mandate does give commanders the discretion to protect civilians. The principal problem is establishing a ceasefire between the parties, so that there is security on the ground. Once that is done, we can begin the process of returns and of helping people to rebuild their lives. Ultimately, of course, the need is to build a political solution, and the way to stabilise the situation on the ground is to start deploying these troops. If the mandate needs to be looked at again, we will do so.

Peter Pike: This is another great tragedy for Africa. People are very concerned about it, and my constituents have been raising money to help the civilian population in Darfur. The Minister will recognise that until we secure a ceasefire and start working towards a political solution, the situation in Darfur will remain another blot on the name of Africa. We must give whatever support we can to Darfur, and to the other African countries, in order to solve the problem there.

Chris Mullin: I would not wish to understate in any way the gravity of the situation in Darfur. The priority is to get the AU mission up to full strength and then to get it properly deployed.
	I continually hear reports of the situation in Darfur, often on the BBC, as if only one party—the Government of Sudan—were involved. In fact, there are two parties and, according to the UN special representative, Mr. Pronk, the rebel forces have been responsible for a greater number of violations than the Government side over the last two months. In October, the rebels were responsible for many ceasefire violations and in November, again according to Mr. Pronk, they aggressively violated their commitment to the Abuja protocols. It is important for people to bear it in mind that there are two sides to the dispute. It is a very complicated one and both sides are behaving badly, but we do ourselves no service in improving our understanding of what is happening there if we continually pretend that it is all due to the Government of Sudan. That is not the case.

Mark Simmonds: It is clear that the situation in Darfur is continuing to deteriorate, with human rights violations, rape, murder and massive population displacement all occurring. Only yesterday, two Save the Children workers were killed. The Nairobi Security Council resolution has been severely criticised by aid agencies as a big step backwards. When will the UK Government put sufficient pressure on UN Security Council members to enforce a no-fly zone, upgrade the AU force from monitoring to peacekeeping, impose an arms embargo on all sides and agree that the atrocities are genocidal, thereby ensuring immediate international action?

Chris Mullin: We are keeping up constant pressure, within the UN and elsewhere, but the primary difficulty—and the primary objective—at the moment is to get the AU force properly deployed. Until that happens, we cannot even talk of a meaningful ceasefire being enforced. That is the first thing that we need to do. If we need to look at the mandate and other issues mentioned by the hon. Gentleman, we will do.

Ukraine

Betty Williams: What joint action is being taken by the EU to assist the political situation in Ukraine.

Denis MacShane: Following the initial agreement, brokered by High Representative Javier Solana and the Presidents of Poland and Lithuania—a good example of Europe's common foreign policy in action—the EU and the UK are now calling on all parties to work for a free and fair repeat of the second round of the presidential election, which is taking place on Boxing day, on 26 December, this year.

Betty Williams: I thank my hon. Friend for that reply. Will hon. Members from the House or representatives of the other place be present as observers during the re-run of the presidential election on the 26th of this month?

Denis MacShane: I pay tribute to our distinguished colleague and friend of all Members, my right hon. Friend the Member for Walsall, South (Mr. George), who was present during the first election and contributed to the outlining of many aspects that had gone wrong. The UK is doubling the number of its observers for the re-run of the second round on 26 December. Our ambassador in Kiev informed me today that Terry Davis, our former right honourable friend who represented Birmingham, Hodge Hill—now the Secretary-General of the Council of Europe—was there yesterday. That will also contribute to the effort to ensure that the second round election is free and fair. Any hon. Members who would care to spend their Boxing day in Kiev should get in touch with me.

Angus Robertson: Is the Minister content that the EU's near neighbourhood policy is robust enough to deal with the particular challenges that will be faced by the Ukraine in the months and years ahead? Does he agree that it is important for the EU to prioritise political and economic aid, especially to eastern Ukraine in order to avoid feelings of marginalisation there?

Denis MacShane: Yes, I agree in general terms with that point.

Mark Lazarowicz: I welcome what the Minister said, but does he accept that the best help that Europe can give to the democrats in Ukraine is to make clear the long-term relationship that we see Ukraine having with the EU? If we do not provide clarity about the relationship and Ukraine's eventual membership of the EU, we are likely in the long run to dash the hopes of the millions who have been demonstrating for democracy in the streets of Kiev.

Denis MacShane: It is undoubtedly encouraging to see so many people demonstrating all over Ukraine in favour of the country having a much closer relationship with Europe, and I wish that Conservative Members would learn the odd lesson from that. What counts is that Ukraine has a positive relationship with Russia and its western neighbours. It now borders three EU member states. Kiev is one of the cradle cities of European culture and civilisation. I assure my hon. Friend that the Government will have talks with our European partners to develop further that positive European relationship with Ukraine.

Graham Brady: Hon. Members of all parties are united in their desire for free and fair elections in Ukraine. The role of British election monitors there will be crucial in that process. Does the Minister understand the personal sacrifice being made by those British citizens who have volunteered, at their own expense, for that important task? Will he show some Christmas spirit and undertake to fund the travel and accommodation costs of people giving their time to achieve a positive outcome? So far, getting sufficient numbers of people to sign up has been a real problem, because they have to meet those extraordinary costs at this time of year. Will the Minister help?

Denis MacShane: I am very happy to look at that. The UK contributed £23.7 million to the Organisation for Security and Co-operation in Europe. We have spent £3 million already on helping to create the environment for more democratic elections. We have also spent £600,000 directly on the 2004 presidential election. I admire the fact that Britain is the nation with the greatest presence there. I cannot offer to underwrite every person who wants to go to Kiev but, if the hon. Gentleman wants to spend Boxing day in Kiev, I guarantee that I will pay for it myself.

Israel

Brian Iddon: What representations he made during his recent visit to Israel on the separation wall.

Jack Straw: During my visit to Israel on 24 November, I raised this issue with Israeli Foreign Minister Silvan Shalom. I reiterated the British Government's opinion that, while we understand Israel's legitimate security concerns, the construction of the barrier in occupied territory is unlawful and causes unacceptable humanitarian hardship for many Palestinians. With other EU colleagues, we voted in favour of a resolution to that effect in the UN General Assembly on 20 July.

Brian Iddon: The wall is being built in such a way that it divides east Jerusalem into two cantons. New gates are being opened, and old ones closed. That is causing more Palestinian families to be separated and more land to be annexed. In addition, it will make final status talks on the future of the city of Jerusalem extremely difficult. Has my right hon. Friend had any discussions with the Israeli Government on that point?

Jack Straw: Yes, indeed I have, and those discussions took place during my visit to Israel on 24 November. The illustration that my hon. Friend gives is further evidence of the hardship caused by the separation barrier where it is outwith the internationally accepted 1967 lines. As far as final status is concerned, those matters remain to be negotiated under phase 3 of the road map. However, both sets of Israeli Ministers to whom I spoke made it clear that they fully understand that they may have to move the separation barrier as part of any final status settlement. They pointed out that they had done that when there was a final settlement in Israel's disputes with Egypt.

James Clappison: Does the right hon. Gentleman agree that, although the security fence has undoubtedly been effective in reducing terrorism and saving lives, it would be better still if the people of the region had the benefit of a durable and peaceful solution? Does he accept that the encouraging progress and momentum towards peace that has been evident in Israel recently should be met by a Palestinian leadership with a genuine determination to eradicate terrorism?

Jack Straw: In his first remark, the hon. Gentleman states a fact: it is a reality of Israeli politics that, although it is highly disputatious about almost every issue, there is general agreement across the parties about the separation wall. That illustrates the degree to which the Israelis have been traumatised by the terrorism. That does not justify their decision, but it explains it.
	I also agree with the hon. Gentleman's second point: we want there to be an active and responsible Palestinian leadership. We have every reason to expect that that is what we shall get as a result of the elections on 9 January.

Llew Smith: On the behaviour of the Israeli Government, does my right hon. Friend accept that Israel is acting more like a tyrannical regime than a democracy in its treatment of one of the most courageous peacemakers of our time—Mordecai Vanunu?

Jack Straw: I understand the point that my hon. Friend makes, but I do not believe that we should characterise Israel, which is a democracy, as a tyrannical regime. We have made representations in respect of Mr. Vanunu and I am happy to pass on those of my hon. Friend.

Richard Ottaway: Does the Foreign Secretary agree that the best way to a lasting solution in the middle east is through implementation of the road map? To that extent, does he agree that it should be amended to include some form of dispute resolution and would he consider introducing a central figure who would do his best to bring both sides together to try to come up with a solution?

Jack Straw: I understand the hon. Gentleman's point. However, given the difficulties of getting the road map agreed in the first place, we should not make the best the enemy of the good. What is crucial now is that we progress with implementing phase 1, phase 2 and then phase 3 of the road map as quickly as possible. Crucially, the withdrawal from Gaza and from four settlements in the north of the west bank needs to take place as quickly as possible, with international support so that it does not leave a vacuum that is filled by the terrorists but enables the Palestinian Authority to establish the beginnings of an independent and viable state of Palestine.

Palestine

Richard Burden: What assistance he is giving to ensure that Palestinian electors are able fully to participate in the forthcoming elections.

Jack Straw: The EU has provided €6 million to support voter registration and a further €4 million for the election. It is also sending a substantial observation mission, including UK observers. Key assistance by the UK, including our continuing work to help to improve the Palestinian Authority's security structure in the occupied territories, will be sustained. During my recent visit, I saw the central elections commission and expressed UK support for its work. I also pressed, and received undertakings from, the Israeli Government in respect of their facilitation of the elections in the west bank, Gaza and East Jerusalem. I have to say that both the Palestinian Authority and the Israelis were well aware of the potential for rejectionist terrorists to disrupt the electoral process and to damage democratic Palestinian causes as much as the Israelis. In that respect, I wish to condemn Hamas unequivocally for its attack and the killing of five Israeli defence force soldiers two days ago and for its boycott of the Palestinian Authority presidential elections.

Richard Burden: I welcome my right hon. Friend's statement and put it to him that if we are to enable Palestinian electors to participate fully in the elections it is important that they can meet candidates, and that means that candidates have to be able to move around. Does he therefore share my concern that last week Dr. Mustafa Barghouti—not to be confused with Marwan Barghouti—was held up between Jenin and Ramallah at a checkpoint? He and his colleagues were beaten by Israeli troops and forced to lie down for more than an hour. If we are to facilitate elections, it is important that the Israelis are told that such behaviour is not acceptable and that the freedom of movement guaranteed by the Israeli Foreign Minister really must be respected.

Jack Straw: The Israeli Foreign Minister gave me clear undertakings, which were repeated in public, that the Israeli Government would, so far as is possible, respect the 1995 interim agreement, which was the basis for the arrangements for the 1996 Palestinian Authority elections. We are watching the situation carefully, as are our international partners, and we are happy to follow up any representations made to us in this House or by members of the Palestinian Authority.

Michael Ancram: I join the Foreign Secretary in his condemnation of the behaviour of Hamas. I welcome the fact that the elections on 9 January will be held under the same rules and dispensations as in 1996 and I confirm that the Israeli Foreign Minister made the same undertaking to me. Members of the Palestinian Authority also told me in Ramallah last week that their concerns about the election in East Jerusalem have satisfactorily been met by the Israeli authorities, and that is encouraging.
	Given that the elections are seen on all sides as a significant step in the return to the road map, is it not in the interests of all sides that the next Palestinian leader is elected with the strongest democratic mandate possible to carry the fraught peace process forward? Is it not also important that the courageous forthcoming disengagement of Israel from Gaza is seen, alongside the elections, not as a one-off but as another significant step towards the eventual resumption of dialogue upon which alone a final status settlement is possible?

Jack Straw: I agree with everything that the right hon. and learned Gentleman said. The withdrawal from Gaza is welcome and courageous. It has, for example, led to most serious divisions inside Prime Minister's Sharon's coalition, yet he has none the less persisted with that decision and I am happy to say that it now looks as though he will be joined in government by our Socialist International partners, the Israeli Labour party. However, it is crucial that the withdrawal from Gaza and the four settlements in the north of the west bank is seen as a necessary step towards implementation of the road map, although by no means a sufficient step.

Huw Irranca-Davies: I welcome the Secretary of State's outright condemnation of Hamas and any terrorist activity that may happen in the run-up to the election, and also his urging the Israeli Government to bend over backwards to ensure that every Palestinian and delegates in every area have access to the election. Does he agree that this is a unique opportunity to find a way forward for the voices of moderation and that we should put back in the box those with the most strident voices and the extremists?

Jack Straw: It is a unique opportunity and I was struck by the determination of both Israelis and Palestinians to seize it. However, it has to be made clear that the one group that could prevent the elections from taking place at all, or in a sensible and fair way, are the rejectionist terrorists who are not only fighting the Israeli people but seeking to disrupt their own elected Palestinian Authority and their own democratic institutions. It is utterly cynical of Hamas to boycott the elections as well as to take the kind of terrorist action that they took two days ago, and I hope that they hear the complete condemnation not just from people in this country but around the world. It would not even serve their real purpose, which is trying to improve the lot of poor Palestinians, were they to succeed in that disruption.

Jenny Tonge: The Foreign Secretary must understand that the behaviour of Israeli troops at the checkpoint last week endangers free and fair elections just as much as actions by terrorist groups. Further to the question from the hon. Member for Birmingham, Northfield (Richard Burden), what demands has the Foreign Secretary made of the Israeli Government following that incident? Why were those men beaten up? Was it because they were presidential candidates or simply because they were Palestinians?

Jack Straw: I do not know the full circumstances of what happened, although I am happy to make inquiries into them. I do not defend excesses by the Israeli defence force; I never have, and I have always been happy to follow them up. However, the hon. Lady makes a grave error if she is suggesting that there is some kind of moral equivalence between the position of the Israeli defence force and desperate, horrible terrorists such as Hamas.

China

Mohammad Sarwar: If he will make a statement on the imprisonment and sentence of Tenzin Deleg Rinpoche by the Chinese Government.

Douglas Alexander: We and our European Union partners have raised with the Chinese our serious concerns about the way in which the trial of Tenzin Deleg Rinpoche was conducted, the lack of transparency and the death sentence. We did so most recently on 25 November. The Chinese ministry of foreign affairs clarified that the two-year suspension period on the death penalty will end on 23 January 2005 and not on 2 December 2004. The Under-Secretary of State, my hon. Friend the Member for Harlow (Mr. Rammell), raised the case with the assistant Foreign Minister in December 2003. It was also on our list of individual cases of concern handed over at the UK-China human rights dialogue on 22 November in Beijing.

Mohammad Sarwar: I am pleased that the Government have made strong representations on the issue. Can my hon. Friend assure me that the Government will continue to raise concerns about religious freedom and basic human rights with the Chinese Government?

Douglas Alexander: I can give my hon. Friend that assurance. We continue to have serious concerns about religious freedom in China, in particular for Christians and other religious practitioners, and I can assure him that those contacts will be maintained. The matter is of some personal interest, as both my grandparents were medical missionaries in China, so I take my hon. Friend's point on board.

John Wilkinson: Can Her Majesty's Government use the extra time that the Chinese authorities have provided to reiterate the pleas for clemency that have been made on Mr. Rinpoche's behalf, not only by the EU and the British Government but also by Members on both sides of the House, through an early-day motion that is currently on the Order Paper, and by people from the United States? Will the Minister also bear it in mind that the president of the Parliamentary Assembly of the Council of Europe recently paid a visit to the People's Republic of China and spoke to the Chinese authorities? That institution, too, is a guardian of human rights on our continent and we should be affronted if the death sentence were carried out.

Douglas Alexander: I agree with the points made by the hon. Gentleman and know of his concern and interest in these matters. I can assure him that we will continue to make representations to the Chinese Government in relation to that individual, who is, of course, a Tibetan religious figure of some note. I can also assure him that those representations will continue in the light of the time scale that I have set out today.

Tony Lloyd: China still has a long way to go with its record on human rights, not simply in this case, but across the board. Even in an area where we have great national concern—Hong Kong—there are serious concerns about the lack of progress on the developments to which the Chinese committed themselves. In that context, although I sympathise enormously with the Foreign Secretary's earlier comments about the manner in which we will move forward away from the present arms embargo, does the Minister accept that it is important that no European country, in the pursuit of trade or self-interest, races so far ahead that it gives signals to the Chinese that human rights do not matter to us in Europe? They matter profoundly.

Douglas Alexander: There is little that I can usefully add to the Foreign Secretary's comments. We are not pre-empting the conclusion of the discussions that are under way in the European Union. I can assure my hon. Friend that the UK-China human rights dialogue will continue. The last meeting took place in November and the next is expected in the spring of 2005, when we will continue to make such representations.

Burma

Iain Luke: If he will make a statement on the continued house arrest of Aung San Suu Kyi.

Douglas Alexander: I am very concerned that the Burmese military have formally extended Aung San Suu Kyi's house arrest. Her continued detention, together with that of all political prisoners in Burma, is completely unjustified and unacceptable. We have repeatedly called for the immediate release of Aung San Suu Kyi, so that she play an active role in national reconciliation, and we will continue to do so.

Iain Luke: My hon. Friend will be aware of early-day motion 273, signed by 116 Members, drawing the House's attention to the plight of Aung San Suu Kyi, who is currently in complete isolation, without telephone calls, and visited only by her doctor. Will the Government ensure that the ambassador in Rangoon continues to put the case of the House and the Government for an immediate release and do all that he can to ensure that Burma's neighbours in the Association of South East Asian Nations play a fuller part in securing the release of Aung San Suu Kyi?

Douglas Alexander: I am indeed familiar both with the terms of the early-day motion and the strength of feeling among hon. Members on both sides of the House in relation to Burma. At a recent meeting of the all-party Burma group, at which my hon. Friend was represented, I was able to discuss the conversation that I had held with the ASEAN ambassadors in which I made categorically clear the British Government's position in relation to Burma. It is also worth pointing out that it was in large measure owing to the British Government's continued efforts that the European Union's common position on Burma has been strengthened recently, but I am happy to give the assurance that work will continue on this important issue.

John Bercow: Given the continued house arrest of Aung San Suu Kyi, the savage violation of human rights in Burma every day and the evidence to be published this week by Christian Solidarity Worldwide of the displacement of a further 7,000 people from Karen and Karenni in the past month alone, is it not a disgrace that Burma is never an agenda item for the United Nations Security Council? Will the hon. Gentleman fight to raise the issue, naming and shaming China in the process for its calculated obstructionism?

Douglas Alexander: I have had the opportunity to discuss this with the hon. Gentleman. It is fair to say that there is no consensus on the Security Council, as his question implied, but it is equally fair to say that the British Government continue to make representations on this issue in the UN. Indeed, we continue to raise it in relation to a resolution that I understand will come to the UN General Assembly later this year. However, the fact that, when we previously spoke on this matter, we had failed to secure the support of an Asian partner as a co-signatory to that UN General Assembly resolution is indicative of the fact that it is not simply a challenge facing one country but a matter that we continue to work on with a range of our international partners.

Spain

Claire Ward: What discussions he has had with the Spanish authorities in respect of the recent racism and violence at the football match against England.

Denis MacShane: My right hon. Friend the Foreign Secretary and I discussed this matter with our opposite numbers the day after the match and expressed the outrage felt throughout the UK. They, as well as the Spanish Prime Minister's office, have issued statements apologising and condemning the behaviour.The House may also be interested to know that the Spanish anti-violence commission has just asked the Spanish football association to open a disciplinary case against the Spanish national coach, Luis Aragones, for his remarks about British players, which the whole House will condemn as racist.

Claire Ward: I have received complaints from constituents who were at the match. It was not simply the fans but the Spanish police who were engaged in racism and appalling abuse. The Football Association here has received 75 complaints about that match in relation to the Spanish police. What future is there for relations between this country and Spain when we cannot have a friendly match with good support from fans or expect respect from the Spanish police for our tourists travelling abroad?

Denis MacShane: My hon. Friend makes valid points. I am glad to convey her concerns to the Spanish authorities. She is, of course, a season ticket holder at Watford football club and a midfield star of the women's parliamentary football team—I understand that she bends it better than Beckham. I will take up her serious points with the embassy in Madrid and convey the concerns that she raises on behalf of Watford and all English football fans in respect of what happened on that sad night in Spain.

Andrew MacKay: Does the Minister think that those disgraceful scenes add to Madrid's claim to host the 2012 Olympics or does he share my view that they should come here to London?

Denis MacShane: I profoundly believe that every sane and intelligent man—[Hon. Members: "And woman."]—and woman, and Conservative, would wish the Olympics to come to London in 2012, but as a Government, we are not directly involved. The decision will be made on the basis of the wonderful facilities that London offers, the great welcome that we offer to foreigners and our wonderful sporting achievements. I hope that by then the Conservative party will be pro-European.

Chris Bryant: My hon. Friend seems to suggest that all is hunky-dory between Britain and Spain on this issue, but the truth of the matter is that the Spanish authorities were remarkably nonchalant for several days. None of the national newspapers, and neither the radio nor the television, presented the story as important. I wonder whether my hon. Friend the Minister could not raise it more assertively, perhaps through one of his hard-hitting articles in El Pais or another Spanish newspaper?

Denis MacShane: My hon. Friend comments on how the Spanish media handled the story. All that I can say is that Spanish Ministers, and the Prime Minister's office, were swift to condemn and clear in their apology. I hope that, if similar complaints were ever made about an incident anywhere in Britain, all Members of Parliament would be swift to condemn any such behaviour—xenophobic, racist, or what you will.

Embassies (Commercial Departments)

Nicholas Winterton: How many commercial departments are operated by his Department in UK embassies in European capital cities.

Douglas Alexander: We have commercial departments operating in all European capitals. My right hon. Friend the Foreign Secretary will make a statement in the House tomorrow setting out some limited changes to our representation overseas.

Nicholas Winterton: Am I reliably informed by a business man who used to live in Cheshire and whom I have known for more than 20 years that the commercial departments in embassies throughout Europe are being downsized and that UK staff in particular are being made redundant? If that is the case, does the Minister appreciate the serious impact that that will have on UK industries exporting to countries in Europe and the huge problems that will be created for UK companies in establishing contacts that hitherto have been aided by the commercial departments in our embassies in Europe?

Douglas Alexander: I can assure the hon. Gentleman that, in the written ministerial statement that my right hon. Friend the Foreign Secretary will make tomorrow, a range of those issues will be covered. I equally assure him that we continue to place great importance on the work that is taken forward by the commercial departments in British embassies, not just in Europe but around the world, on the work of UK Trade and Investment and in particular the opportunities that are provided through that network for effective exporting of British services and products.

Ian Davidson: Will the Minister clarify whether it is part of the remit of commercial departments in British embassies in European capitals to solicit donations from foreign-owned companies on behalf of Britain in Europe so that they may participate in the referendum? If that is not part of their remit, what steps is he taking to ensure that such practices cease forthwith? I understand that he has not had notice of my question, so if he is unaware of individual examples of that practice, will he undertake to investigate the matter and write to me more fully?

Douglas Alexander: I would be keen to see evidence of the situation that my hon. Friend raises, although it might be injudicious of me to say in advance of seeing that that the suggestion is a giant red herring. I shall certainly make inquiries and will happily take the matter forward with him.

Henry Bellingham: Does the Minister agree that there are big opportunities for small and medium-sized enterprises in the accession countries and other eastern European countries with aspirations to join the EU? Surely we should boost our commercial departments in those countries' embassies. Would it not make sense for the Secretary of State to make an oral statement tomorrow so that we may go into the subject in more detail?

Douglas Alexander: As my right hon. Friend the Foreign Secretary has indicated, there will be plenty of opportunity to ask him questions during tomorrow's debate. On the hon. Gentleman's specific point about opportunities for British SMEs in accession countries, I recently had the opportunity to travel to Prague, where I met a range of British businesses that are working in the Czech Republic. They left me in no doubt about both the commercial opportunities that exist in the Czech Republic and the support and encouragement that they had received from UKTI and others in their endeavours.

Brazil

Bob Blizzard: When he next plans to visit Brazil to discuss world trade issues.

Denis MacShane: My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs is in Brasilia as we speak. International trade is naturally a key issue in all her meetings.

Bob Blizzard: There could be no better answer than that. Will my hon. Friend indicate to the House the reaction of the Secretary of State for Environment, Food and Rural Affairs and his Department to last week's creation of the South American Community of Nations, which in outline merges Mercosul and the Andean Community? What bearing does he think that that will have on negotiations between the European Union and Mercosul? Given Brazil's key position in the World Trade Organisation, Mercosul and the new body, and its desire to balance its relations with America with those with the European Union, does he agree that close political contact with President Lula's Government should be of the highest priority for this Government?

Denis MacShane: I agree with that point. It was a pleasure to have President Lula in London last summer at the progressive governance conference, at which he made the point that dismantling trade barriers in south America, and those between south and north America and south America and Europe, was of the highest priority. He is very much at the forefront of that and I welcome all the steps that he is taking to move in that direction. Luckily, we now have an excellent EU Trade Commissioner in post in Brussels and I shall ensure that my hon. Friend's remarks are addressed to him as he takes forward the EU's relationship with Brazil.

Anne McIntosh: Will the Secretary of State for Environment, Food and Rural Affairs be examining such trade issues as the production of sugar beet, turkey and chicken in Brazil, which is having a negative impact on producers in the Vale of York and other parts of the UK? Will the Government examine some rather dubious currency fluctuations in the Brazilian economy?

Denis MacShane: Those reasonable questions should perhaps be addressed to other Departments. Her Majesty's Government's general view is that free trade is a good thing and protectionism is a bad thing.

Cyprus

Ben Chapman: What plans he has to take forward the Annan plan on Cyprus, with particular reference to direct flights from the UK to the Turkish Republic of Northern Cyprus.

Denis MacShane: The Government remain strongly committed to achieving a Cyprus settlement. We continue to believe that the Annan plan represents the only realistic basis for a comprehensive solution. Ending the isolation of the Turkish Cypriot community will help moves towards a settlement and it is clear that direct flights to the north of Cyprus would contribute to ending that isolation.

Ben Chapman: The Turkish Cypriots voted for the Annan plan and find themselves in isolation. The Greek Cypriots did not vote for it and have the full benefit of EU membership. Does my hon. Friend agree that the best way to end Turkish Cypriot isolation is not just through the establishment of direct flights, but through the flow of EU aid, direct trade and movement on Annan?

Denis MacShane: My hon. Friend is right on all three points. The EU is contributing €259 million-worth of aid to the north, but he is right to stress that trade and investment are by far the best ways forward. We are in active discussion with all our EU partners on the matter. If we get a positive result on Turkish accession at the European summit this Friday, I hope that that will also send a signal that the time has come to allow trade 360° around the compass to develop on the island of Cyprus.

Roger Gale: Will the Minister confirm that there is no such thing as the Turkish Republic of Northern Cyprus as a recognised entity? If he believes that there is still life in the Annan plan, can he tell the House what the Government are doing to secure, first, the removal of the illegal army of occupation in the north, and secondly, a restitution of the property stolen from Cypriots?

Denis MacShane: The hon. Gentleman is right to say that the Government do not recognise the Turkish Republic of Northern Cyprus. We have seen a clear commitment from the Turkish Cypriots in favour of Annan, but alas, a rejection from the Greek Cypriots. We are where we are. I have raised the issues that the hon. Gentleman mentioned with the Turkish Government and on the record, publicly, in Turkey, but it needs two sides to talk. On a recent visit to Cyprus, I urged both the Greek Cypriots and Turkish Cypriots to come together and have their own meetings at all levels to find their own solutions, because ultimately the problem of Cyprus needs to be resolved by the Cypriots themselves.

Mental Capacity Bill (Programme) (No. 3)

David Lammy: I beg to move,
	That the Order of 11th October 2004 (Mental Capacity Bill (Programme)) (as amended by the Order of 12th October 2004 (Mental Capacity Bill (Programme) (No. 2)) be varied as follows—
	Consideration and Third Reading
	1.   Paragraphs 4 and 5 of the Order of 11th October 2004 shall be omitted.
	2.   The proceedings shown in the first column of the following table shall (so far as not previously concluded) be brought to a conclusion at the time specified in the second column—
	
		
			  
			  New Clauses relating to life-sustaining  treatment and best interests. 3.30 p.m. on the day on which proceedings on consideration are begun. 
			  New Clauses relating to research and to  independent consultees 5.30 p.m. on that day. 
			  Remaining proceedings on consideration 6 p.m. on that day. 
		
	
	3.   Proceedings on Third Reading shall, so far as not previously concluded, be brought to a conclusion at 7 p.m. on that day.
	The Government want to ensure that there is sufficient time to debate the important issues that arise in the Bill, and we recognise the need to allow adequate time to debate the amendments relating to best interests and advance decisions. That is why we have provided for the debate to last until 3.30 pm on all the amendments in the first group. It is also important that we allow time to discuss the other important issues—independent consultees and research. A number of amendments have been tabled on those subjects, which concerned hon. Members on Second Reading and in Committee. I hope the time allocated this afternoon will allow us to debate all the amendments and the technical arrangements in the three groups.

Gerald Kaufman: There have been reports that the Government would table new amendments to respond to concerns in the House. In response to my hon. Friend the Member for Chorley (Mr. Hoyle) and myself at business questions last Thursday, the Leader of the House said that the Government would table new amendments today. There are no new amendments. That undertaking has not been fulfilled.
	How are we to proceed today? Will we get some kind of assurance—which, if it is not backed by amendment, will be worthless—from the Minister in charge, about what the Government intend to do in another place or at some other time? How can the House of Commons proceed reasonably on a Bill that affects large numbers of people, which affects the consciences of Members in all parts of the House, and on which the two Opposition parties have a free vote, whereas we do not?
	How is the House of Commons to proceed in a sensible, reasoned way on issues that touch the heart of the life of human beings, if the Government are not fulfilling the commitment that they made that new amendments would be tabled, and if the all the backdoor conversations that appear to have been going on during the past few hours have not resulted in anything on the Order Paper?

Nicholas Winterton: May I warmly support that point, which the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) has made extremely well? On Thursday, I was here for business questions, when the Leader of the House clearly indicated that the Government would table new amendments. I share the view of the right hon. Member for Manchester, Gorton that unless the words appear on the face of the Bill, all the whispers and assurances given in a quiet corner are valueless.
	Before we proceed this afternoon, I hope that the Minister will indicate precisely where the Government stand, because the amendments, which the Leader of the House properly promised last Thursday at business questions, have not materialised. Are we to trust the Government? This is a matter of high moral principle, and before we proceed any further, I hope that the Minister will give assurances that satisfy me, the right hon. Member for Manchester, Gorton, and many other hon. Members who feel strongly about the subject.

Kevin McNamara: It would be helpful if we knew the Government's intention on new clause 4. We have received correspondence that indicates that the Government will accept new clause 4, which has been tabled by my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), subject to a little bit of tweaking here and there. I do not like new clause 4, but if undertakings have been given, we must know what they are.
	It would be useful if we knew the issues on which we can divide—I can see three such issues in the first batch of amendments.

Gerald Kaufman: My hon. Friend is discussing what we know and what we do not know. Hon. Friends have been in touch with me on the telephone and in other ways to say that they have had conversations with senior members of the Government, who have given assurances about the changes that they intend to make to the Bill, but no changes have been produced. Assurances were given in conversations held yesterday evening and perhaps today—so far as I can gather, they were given to assuage the strong feelings of a number of hon. Members—but they have not materialised. The Minister could give us some information about those assurances before our detailed discussion of the clauses.

Kevin McNamara: I am grateful to my right hon. Friend for that timely and short interjection in my speech. He has, however, deprived me of at least half a column on the subject in Hansard.
	Many Labour Members fear that they will make a lot of points and that the Government will stand firm, before capitulating in the Lords. It would be better if the Government capitulated to elected Members rather to their lordships.

David Lammy: Once we get to the debate, I hope to satisfy hon. Members. Government amendments have been tabled today. On the delicate issues in the Bill, the Government have continued to talk to interested parties and hon. Members. I look forward to getting into the debate, acknowledging where we have made progress and examining whether any outstanding issues remain between us.

Gerald Kaufman: Will the Minister allow me, before he sits down?

Mr. Speaker: Order. The Minister has sat down.
	Question put and agreed to.

Orders of the Day
	 — 
	Mental Capacity Bill

As amended in the Standing Committee in the last Session of Parliament, considered.
	[Relevant document: The Twenty-third Report from the Joint Committee on Human Rights, Session 2003–04, on Scrutiny of Bills: Final Progress Report, HC 1282.]

New Clause 1
	 — 
	Excluded decisions

'(1)   Nothing in this Act permits, authorises or gives validity to any decision made with a purpose of bringing about the death of the person about whose welfare the decision is made.
	(2)   The provisions of subsection (1) do not apply to—
	(a)   a decision that a life-sustaining treatment is not to be carried out or continued because it would be unreasonably burdensome to the person; or
	(b)   the power of the court to make such order concerning the continuance of life-sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.—[Mr. Dobbin.]
	Brought up, and read the First time.

Gerald Kaufman: On a point of order, Mr. Speaker. The Minister just said in response to my hon. Friend the Member for Hull, North (Mr. McNamara) that there are new Government amendments. I have the selection list in front of me, and there is not a single starred Government amendment. Are there amendments that we do not know about?

Mr. Speaker: I say to the right hon. Gentleman that all the amendments are there. My selection of amendments is published, and the House will know about them.

Jim Dobbin: I beg to move, That the clause be read a Second time.

Mr. Speaker: With this we may consider the following:
	New clause 2—Excluded decisions (No. 2)—
	'(1)   Nothing in this Act authorises the withdrawal of palliative care.
	(2)   "palliative care" includes the provision of—
	(a)   relief of pain, suffering and discomfort;
	(b)   nutrition and hydration, however provided.
	(3)   The provisions of subsection (1) do not apply to—
	(a)   a decision that nutrition and hydration is to be discontinued because it would be unreasonably burdensome to the person; or
	(b)   the power of the court to make such order concerning the continuance of life sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.
	New clause 4—Palliative care—
	   'Nothing in this Act authorises the withdrawal of palliative care.'.
	Amendment No. 46, in clause 1, page 1, line 16, at end insert—
	'(7)   An act done, or decision made under this Act by any person acting in a professional capacity, or for remuneration, for or on behalf of a person who lacks capacity must:
	(a)   not be done in a way that is less favourable than the way in which it would be done or made for, or on behalf of any other person who lacks capacity, or for a person who had capacity, in a comparable situation,
	(b)   be done without prejudice to the person's age, sex, sexual orientation, disability, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.'.
	Government amendments Nos. 3 and 4.
	Amendment No. 1, in clause 4, page 2, line 4, at end insert—
	'(3A)   Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.
	Amendment No. 45, in page 3, line 3, at end insert—
	'(4A)   This must include the provision of communication support appropriate to the person, in particular in relation to the matters mentioned in section 4(5).'.
	Amendment No. 2, in page 3, line 3, at end insert—
	'(4A)   He must, where the determination relates to life-sustaining treatment, begin by assuming that it will be in the person's best interests for his life to continue.'.
	Government amendment (a) to amendment No. 2, in line 2, leave out 'best'.
	Government amendment No. 5, in page 3, line 27, at end insert—
	'(   )   "Relevant circumstances" are those—
	(a)   of which the person making the determination is aware, and
	(b)   which it would be reasonable to regard as relevant.'.
	Amendment (a) to Government amendment No. 5, in line 2, after 'determination', insert 'acting with due diligence'.
	Government amendments Nos. 37, 38 and 6.
	Amendment No. 32, in page 14, line 10, leave out clause 24.
	Amendment No. 42, in clause 25, page 15, line 5 at end insert—
	'and it was explained to P before reaching his decision that the withdrawal of the treatment in question might include the withdrawal of artificial nutrition and hydration.'.
	Government amendment No. 39.
	I call Iain Duncan Smith to move new clause 1. [Hon. Members: "Jim Dobbin."] I call Jim Dobbin.

Jim Dobbin: Thank you, Mr. Speaker.
	It is important to say at the beginning that there are several very important amendments that colleagues want to discuss, and time is short. It is therefore important that we get on with the debate and reach as many of those amendments as possible.
	Like many hon. Members, I welcome the Bill, which is long overdue and contains many good things that will benefit and protect those in a vulnerable position. As the Minister said, there has been genuine dialogue, which I have been part of, and some welcome changes have been made to the Bill, especially on clause 58, which makes it clear that the Bill does not change the law on murder, manslaughter or assisted suicide. I made that point on Second Reading, and it has been taken up.
	Nevertheless, I still have concerns. One danger that needs to be addressed is that clause 58 would inadvertently allow euthanasia by omission. I know that that is not, and never has been, the intention, and that euthanasia forms no part of the Government's policy. That has been made clear in many statements over the last few years. However, if the wording in this area were strengthened, the danger of euthanasia by omission would be averted.
	Unamended, the Bill would mean that those making proxy decisions to withdraw or to omit medical treatment could commit euthanasia without infringing clause 58. As it stands, if a proxy instructed a doctor to stop life-sustaining treatment, the doctor could do so with impunity because the purpose of his doing so would be to uphold the law which gives enforcement to the proxy's instructions. Even if the proxy had an unlawful purpose in making a decision to stop life-sustaining treatment, it would not be the proxy's decision that would cause death, but the doctor's action in withdrawing the life-sustaining treatment. Many proxies and decision makers would have been persuaded that because of the patient's feelings and values, death would be in the patient's best interests. They would argue that the lawful purpose of bringing about death by omission should be pursued. At present, under this jurisdiction only a court makes that decision and it is made only in rare and exceptional circumstances.
	Unfortunately, if unamended, the Bill would allow proxies and decision makers to withhold life-sustaining treatment, including food and fluid, and in numerous circumstances. That would not be a problem if all decision makers and proxies were influenced by the purest motives and sought only the patient's best interests, but we know that in some cases the motive of proxies may be their own self-interest. What is best for the patient could be replaced by what is best for the proxy. A doctor does not have to challenge the proxy's decision in court if he or she feels that the withdrawal of life-sustaining treatment is not in the patient's best interests: who then is going to protect the patient? If we adopt new clause 1, doctors will be able to resist a proxy if they think, in their clinical judgment, that continuing treatment would be in the patient's best interests.

Kevin McNamara: My hon. Friend will be aware of the statement made by the noble Baroness Warnock over the weekend in which she urged people going into homes to consider the financial implications for their relatives. Would not this be the start of a slippery slope towards the impure motives that attorneys or personal representatives might have, and to which my hon. Friend alluded? Did not the Baroness inadvertently do us all a favour by saying what the true interests of many people may be?

Jim Dobbin: Yes, I heard Baroness Warnock commenting on the matter on television. Those implications are the reason for tabling new clause 1, which would enable doctors to resist a proxy if, in their clinical judgment, they believed that continuing treatment would be in the patient's best interests. It would also allow doctors to withdraw treatment that is "unreasonably burdensome" to the patient. I hope that that shows that new clause 1 would not change existing law.

Chris Bryant: I believe that I am as opposed as my hon. Friend to euthanasia. However, what precisely does he mean by the phrase "unreasonably burdensome", which appears in new clauses 1 and 2?

Jim Dobbin: We do not want to subject the patient to undue hardship or pain—that is what "unreasonably burdensome" means.
	New clause 1 would not change existing law.

Iain Duncan Smith: There is another aspect to "unreasonably burdensome". Let us take the case of someone in their last days who is likely to die and finds it uncomfortable to be fed or receive fluids. The new clause would allow withholding in those specific circumstances so that there would not be court cases or judgments against anyone. That covers one cause for concern.

Jim Dobbin: The right hon. Gentleman clarifies my comments.
	The purpose of the new clause is to prevent the extension of the law to proxies and its widening to other circumstances that were not established in the original judgment. I am convinced that that is not the Government's intention, but that will be the effect if the Bill goes through without amendment. We need to close the loophole.

Frank Field: My hon. Friend says that widening the law is not the Government's intention. Would it not help all hon. Members if the Government clearly stated that, by medical support, they do not mean food and liquids?

Jim Dobbin: I agree with my right hon. Friend. That has been part of the discussion in the past year or so. We are anxious for those words to appear in the Bill.

Angela Browning: The hon. Gentleman knows that, on Second Reading and in our deliberations in Committee, the Under-Secretary was repeatedly asked to confirm or deny that the word "treatment" in the Bill included nutrition and fluid. He failed to do that. If he did that today, there would be much greater clarity in the debate.

Jim Dobbin: I hope that my hon. Friend the Under-Secretary has listened to the hon. Lady's comments.

David Lammy: In the past few weeks, we have examined the specific difficulty that, although food, fluid and palliative care for someone in their dying stages is vital and doctors and nurses would fail in their duty if they did not offer comfort, especially through moistening the mouth, we all know old people who do not want tubes and feeding in those last days. Those people can make an advance decision that they do not want to be fed by tube. That is the central issue.

Jim Dobbin: That is a totally different matter.
	We need to establish clearly and unambiguously that proxies and decision makers are not authorised to make decisions with the purpose of bringing about the death of the patient.

Claire Curtis-Thomas: My hon. Friend has heard the views of my hon. Friend the Under-Secretary, who implied that the new clause is about imposing burdensome treatments on individuals at the end of their lives. Will my hon. Friend take the opportunity to restate that the new clause would not impose burdensome treatment but ensure that people who are comfortable in their condition receive hydration and nutrition rather than being starved to death or left to die of hunger?

Jim Dobbin: My hon. Friend is right that the new clause deals with that.
	Although the Shipman case was exceptional, it shows how the unscrupulous can misuse a position of trust. The aim of the Bill is to provide security and sound legislation to protect the vulnerable. The intention is to benefit those who are not in a position to look after themselves. It is up to us to ensure that the wording is not detrimental to those whom we are trying to protect.
	I stress that new clause 1 is not designed to overturn the Bland judgment, but I accept that there has been concern that it might. It is a declaratory provision and does not create any new criminal offence or civil wrong. If it did, it could be argued that it seeks to overturn the Bland judgment. However, that is not so. It is a declaratory provision that makes it clear that provisions with the purpose of causing death have no place in the Bill. New clause 2 (2) expressly reserves the power of the court to make decisions on withholding or withdrawing life-sustaining treatment, which is an important safeguard against the exercise of unscrupulous motives. We have not tabled new clauses 1 and 2 because we are vitalists and seek to preserve life at all costs. It is right that we should limit medical care where it will not work, where it is futile or when it is burdensome. Having worked in the health service for more than 33 years, I accept that that is done regularly in clinical practice.
	It is, however, an entirely different matter to require that treatment and/or assisted food and fluid be withdrawn or withheld from patients who are not dying. If unamended, the Bill would allow that in certain circumstances. We are trying to protect the most vulnerable people. The question should always be, "Is the treatment worth while?"

Frank Field: I am grateful to my hon. Friend for allowing me to emphasise that those of us who are worried about this will support his amendments if necessary in the Lobby. His aim is not to keep people alive at all costs. We want people to die well, and we should not strive officiously to keep them alive when they are dying. However, we do not want to bop people off when they have quite a lot of life ahead of them. That is the emphasis of new clauses 1 and 2. If we do not receive a satisfactory response from the Minister, we should support my hon. Friend in the Lobby this afternoon.

Jim Dobbin: I agree.
	I shall conclude, because many Members wish to take part in the debate. For the record, I would like to make the purpose of new clause 1 crystal clear. In The Times today, my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) said that new clause 1 would leave doctors with no alternative but to keep people alive as long as possible. That is categorically not true. New clause 1 allows life-sustaining treatment, including assisted food and fluid, to be withdrawn in cases where it is futile or burdensome and where doing so would not interfere with good palliative care.

David Lammy: Does my hon. Friend accept the advice of many oncologists or cancer specialists that some cancerous tumours are fed by artificial nutrition and hydration, and thus hasten death?

Jim Dobbin: The Minister has raised that issue with me in the past, but I do not agree with him.

Angela Browning: In the cases that the Minister mentioned, where a tumour is at an advanced stage and hydration and nutrition are withdrawn, inevitably, painkilling drugs have to be increased. As a result, the patient is unable to take sustenance through the mouth, but carers must still make sure that in their dying hours that they have moisture around the mouth. It is incredibly uncomfortable not to have hydration, even if it is not swallowed down.

Jim Dobbin: The hon. Lady makes the point very clearly.
	I have spoken long enough on this issue because, as I have said, there are other important amendments to be discussed.

Claire Curtis-Thomas: My hon. Friend will have heard the Minister, who again implied that people would be forced to take hydration and food when it was blatantly obvious that that would be burdensome for them. Will my hon. Friend take the opportunity once again to assert that we would like people to receive hydration and nutrition, but not when it is burdensome for them?

Jim Dobbin: I have made that point a number of times, and I am grateful to my hon. Friend for reiterating it.

Iain Duncan Smith: I support new clauses 1 and 2. The hon. Member for Heywood and Middleton (Jim Dobbin) has set out a strong, factual case as to why the Government should support our proposal. I shall concentrate on only one thing, because there is a tendency to overcomplicate the issue. This group of amendments is at the heart of our debate today and we should consider whether or not, at the end of it all, we should withdraw food or fluids from people who would otherwise live. That is the critical point. The problem with the Bill is that it would give powerful legal backing to a certain interpretation of living wills. By the way, many Members may not know that a living will does not have to be a written document, and could result from a general conversation while watching a television programme which, like one shown in the United States, graphically depicts what happens to people who are in pain later in life. Someone might say to someone else, "Look, you are going to be my advocate. I do not want to be kept alive unnecessarily, and I do not want medical intervention to keep me alive." When the individual is incapacitated, their advocate can say that they made it clear that they did not want any medical intervention. However, the individual concerned would not have said that they wanted food and water, the most natural form of treatment, to be withheld. That is at the heart of our proposals which, as the hon. Member for Heywood and Middleton said, do not aim to overturn the Bland judgment.
	To make my position clear, I think that the Bland judgment was wrong. I have tabled amendments proposing that Parliament should make such decisions and not leave them to the courts. Why, after all, are we elected to the House if not to represent the interests of our constituents and make these decisions on their behalf, having discussed the matter with them? However, I am prepared to compromise, and I support new clauses 1 and 2, which will not reverse the Bland judgment, much as I would have liked them to do so. They make it clear that we should find in favour of life—that is the critical issue. Some people have asked for a definition of "burdensome". At the moment, however, the priorities are the other way round, and under the Bill it would be easy to withdraw food and fluids from an individual.
	Doctors and nurses in other parts of the world often disagree with the advocate's judgment. Some of them say that they can communicate with the individual, but their arguments have failed in court. That is the problem with the Bill, which removes the opportunity to reconsider what happens to a loved one. If the person concerned is conscious, even briefly, it prevents them from making a final judgment. That is the key issue. Many hon. Members on both sides of the House will agree that the hon. Member for Crosby (Mrs. Curtis-Thomas) spoke movingly about her experience when her mother died. If they have not already done so, I recommend that they read her speech, which makes it clear that we should make a judgment in favour of life. If we persistently confuse medical treatment with administering food and water, we will find against life.

David Lammy: Does the right hon. Gentleman accept that people can make a living will under common law, and that the Bill provides the safeguards that doctors have been calling for when making those advanced decisions? Does he accept that that is why Age Concern, Help the Aged and the Alzheimer's Society have asked for such legislation?

Iain Duncan Smith: With respect, we have been through that many times. People are not against the principle of clarifying the position on living wills. However, new clause 1 deals with the problem that food and fluids are deemed to be medical treatment by the courts. Someone who specifies the withdrawal of medical treatment or tells someone else that that is what they want is unlikely to mean that they wish to be starved or dehydrated to death. That is the problem at the heart of the bill.

Claire Ward: I am listening carefully to what the right hon. Gentleman is saying. He makes the point that he does not agree with the Bland judgment. I agree with it, although, at the other end of the scale, I do not agree, under any circumstances, with euthanasia. He is essentially arguing against Bland, which makes things difficult as it is confusing the issue surrounding new clause 1. I find that extremely difficult, since he does not agree with the Bland judgment, yet he is arguing the case for new clause 1.

Iain Duncan Smith: The hon. Lady says that she does not agree with euthanasia, but what is being done to someone in terms of bringing about their death when food and fluids are withdrawn? I do not understand this ludicrous debate—dancing on the head of a pin—about what happens to somebody: if I stop someone eating and drinking, they will die and I would be assisting them to die. That, in essence, is euthanasia.
	I have said all along that I do not necessarily agree with how the Bland judgment has classified food and water as medical treatment, but I am prepared to accept that we should not overturn it through the Bill. I am saying that the declaratory position would change the emphasis and move the question to whether a treatment is worth while, which is what we should be asking, rather than whether a patient's life is worth while, as will be the case under the Bill. That is a fundamental difference, that is what the new clauses would do and that is what I am prepared to accept.

Frank Field: Does the right hon. Gentleman accept that we are not discussing the Bland judgment? That comes later, but it is important to make that clear. My hon. Friend the Minister has trotted out Age Concern and all those other great organisations, but how many of their representatives have living wills? The vast majority of our constituents do not have living wills in any form, written or unwritten.
	In considering the Bill, we are dealing with those who are incapable of making a judgment. What should the legal framework be to protect their interest? That is the judgment we have to make, but not for those of us who have decided that we want to go out of this world in a certain way. There is a case for debating that issue in respect of living wills and for honestly debating euthanasia, but there is no case for having euthanasia by the back door—withdrawing food and liquids from people when we are professing to do something else.

Iain Duncan Smith: I agree: that is where we are and what I began with in speaking in support of the new clause. I genuinely cannot understand why any Member of the House would not support the new clause, because as has just been made clear and as I made clear earlier, this does not deal with the Bland judgment. It would make it clear, should these issues go to court, that the favour rests on whether a treatment is worth while. That is what the two new clauses address and I do not consider this such a radical move. It would be a fair decision that took into consideration concerns that the Minister raised in Committee, I gather, and on Second Reading. It would do no Member any harm to vote for the new clause, because it would help to reshape the Bill with regard to the issues that all those charities referred to.
	I accept it from the Minister that there are many who want the Bill. I have said that a large chunk of it is welcome, but this area leaves it very open to challenge.

Hilton Dawson: Can the right hon. Gentleman assure me that his new clauses are so well drafted that they would not allow circumstances in which someone moving inevitably towards a dignified and peaceful death was disturbed by unnecessary and uncomfortable medical treatment?

Iain Duncan Smith: I can give the hon. Gentleman the assurance of a non-lawyer and of someone who, I hope, comes to the House with a certain amount of common sense. These new clauses were drafted so that that could not happen. If the Government think that areas of the new clauses would cause a problem, please come forward and help us to redraft them. Let us do that right now and vote on them, but they will not do that, as they seem almost scared stiff of any amendment to the Bill. We heard from the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman), who said that Members of the House were all promised that amendments would be tabled. No such serious amendments have been tabled. The reason is that the Government do not want this area to be dealt with at all.
	I simply say to hon. and right hon. Members in all parts of the House that we have in front of us today a very serious question: do we make a presumption for life or a presumption that, in some circumstances an individual may have their life ended, and assisted to be ended, by doctors and others who might be against such a presumption for life?

David Lammy: The right hon. Gentleman frames his contribution around the advance decision as it pertains to new clause 1. Does he accept that the advance decision is exceptional in the Bill, as most of it concerns best interests? In dealing with the individual's right when he has capacity to say, "One day, when I no longer have capacity, I do not want this kind of treatment," we are not dealing with best interests in that regard. Also, quite rightly, we say at clause 25(5) that the person should be specific when life-sustaining treatment is involved. That is an important hurdle and something that we should all take seriously.

Iain Duncan Smith: So presumably, the Minister is going to move an amendment that will result in all these living wills being written down and legally checked. Is he going to move such an amendment right now? No, although I will give way to him if he wants to tell me that that is the case. He knows very well that he will not, so let us not have this stupid and silly game in the House. The fact is that he knows that had he said to many of his colleagues that this would be written down and regularly checked, there might have been a reasonable debate on this matter.
	I do not know why the Government are playing this game. Someone might have said such a thing to another person five or six years previously, but are we presuming that they never thought about it again and that their mind did not change over that period? Of course not. The Minister knows very well that, as the hon. Member for Crosby said, people change their minds. We know that most people who attempt suicide do not want to die. That is the reality. Many such people have said it subsequently—they changed their mind. The Bill does not allow for that, which is the key issue.

David Lammy: We had that debate on Second Reading. Suicide notes are ruled out. A suicide note could never, ever be an advance decision. The right hon. Gentleman makes an important point about the written statement. If the Government were to give such an undertaking, would he vote with us today?

Gerald Kaufman: rose—

Iain Duncan Smith: I give way to the right hon. Gentleman.

Gerald Kaufman: May I suggest that if that is the calibre of the Minister's interventions today, he would do better to remain seated? May I make this point to the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith), which has been illustrated by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas)? It is one thing for a person to signify an advance wish when they are articulate, but a time may come when they are no longer articulate although their mental activity is as strong as it was and they want to change their mind. The Bill before the House slams the door on that change of mind.

Iain Duncan Smith: That is exactly right and it is my main reason for supporting the new clauses. I say to the Minister, with respect to him, that it is a bit late in the day to come here and play this game, "If I say that I might say this, would you say something else?" I thought that, in government, the object is to lay one's position on the table so that we can all decide whether we agree.
	The Minister has had plenty of time to come to the House with specific amendments to allow us to vote on what is in his mind, not on what he might do. He has time—if he wants to do that, let him do it—but I am not going to play this game, "If you do one thing, I might do the other."
	I feel passionately about this issue, which is not party political, and I have been inspired by speeches made from the Labour Benches and by actions of many of the Minister's colleagues who are opposed to this proposal. I simply say to them all that this is a chance for Members of the House, once and for all, to represent our constituents and to do something that perhaps the courts do not do—take genuine consideration of real people who suffer and worry about such events. People who are not necessarily members of the judiciary or legally qualified—that is us—can do something with a bit of passion and heart. We can put some heart and soul into a soulless Bill. We should vote for these new clauses.

George Howarth: I wish to speak to amendment No. 2, which is in my name and that of the hon. Member for Tiverton and Honiton (Mrs. Browning), and new clause 4, which is in my name and that of several of my hon. Friends.
	Amendment No. 2 represents a genuine effort to build a consensus, which we hope addresses the key objectives that must be addressed if we are to resolve the issue. From the debate so far, I have a clear sense of what the House does not wish to condone in respect of patients who are in a coma or are otherwise incapacitated and unable to make a realistic or meaningful decision, who may be inappropriately subjected to invasive procedures to sustain or hydrate them in the last hours of their lives. Furthermore, I do not believe that we should in any way undermine the principle of advance directives, on which there is also some consensus, in terms of the circumstances in which those directives might be taken seriously. In that regard, the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) made an interesting point about a conversation held while sitting watching the television, but advance directives and the intent behind them should be judged more seriously than that.

Iain Duncan Smith: With respect to the hon. Gentleman, I notice that new clause 4 says:
	"Nothing in this Act authorises the withdrawal of palliative care".
	In our new clauses, we define palliative care as including food and fluids. Is that included in his definition?

George Howarth: I will talk about new clause 4 in a moment, and try to explain the point about which the right hon. Gentleman has asked me. I want to develop the argument in a logical way.

Claire Curtis-Thomas: My hon. Friend has expressed some reservation about the way in which advance directives are articulated. This morning, I spoke to a consultant from the Netherlands, who talked about the Dutch rules and regulations on euthanasia. He said categorically that there would be no moves to euthanise a body without express written consent that indicates that the individual has been made fully aware of the consequences of the decisions that they are about to make. Would he be keen to see a move made that would formally require advance directives to be written rather than verbally communicated?

George Howarth: My hon. Friend will forgive me if I do not address that point at this stage. I have tabled new clause 4, I will speak to it, and I will listen with interest to what my hon. Friend the Minister says in response. My approach to this matter will become apparent, I hope, during the course of my speech. My hon. Friend almost certainly will not agree with me by the end of it, but she will at least see where I am coming from.
	I do not want people without capacity to be unnecessarily deprived of sustenance or liquids. Most of us do not want people to be unreasonably subjected to invasive procedures in the last hours of their lives. Moreover, there is the issue of advance directives.

Angela Browning: In the context of people in the last hours of their lives, it is not just what the Bill does in terms of their wishes that is the issue, but how the medical profession will interpret the Bill in terms of possible litigation against them, if it is not interpreted in the way that they see it as drafted. The worry is about getting the balance right between sustaining fluid and nutrition until the point at which someone does not naturally take it, and then having invasive procedures. Under those circumstances, nobody would ever die peacefully at home.

George Howarth: I thank the hon. Lady for that intervention. Just as the right hon. Member for Chingford and Woodford Green was inspired by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas), it was a speech made by the hon. Member for Tiverton and Honiton (Mrs. Browning) in Standing Committee that set me off along this track. I will address exactly her point in a few moments.
	Many of the views expressed already in the debate reflect people's decency and straightforwardness in terms of how they wish to interpret the Bill. To be fair and honest, it is not reasonable to say that those qualities exist on one side of the argument but not on the other. Everybody is struggling to find a way through these difficult issues. In the course of trying to arrive at a form of words that makes some kind of sense, I sat through almost all of the Standing Committee, and consulted the British Medical Association and as many of the faiths groups as I could—some chose not to respond, for whatever reason—and I feel that there is a genuine wish in the House and elsewhere to arrive at a decent, straightforward conclusion that reflects in the best way possible the many circumstances in which the provisions will have to be applied.

Frank Field: Does my hon. Friend accept that many of us could vote for his new clause but also for the others? He is dealing with an immensely important area that strengthens the role of the doctor. He will know that one of our most distinguished doctors, Professor Tallis, has written that he has undertaken treatment when he believed that he should not do so, because, like all other doctors, he was scared of what the relatives would do to him in the courts. The new clause strengthens the hand of doctors in saying that treatment is not right at such a stage, and it is therefore fair for some of us to support him in the Lobby on his new clause while also voting for the other new clauses that are down for discussion.

George Howarth: I have known my right hon. Friend for many years and have found that the best course of action with him is not to provide him with any advice, as he has his own opinions and arrives at them in his own way. I am confident that he has the intellectual capacity to work out his own position. What I would say, however, is that there is some merit in his argument. Earlier, we both took part in a Merseyside radio programme—we were not on the same programme simultaneously, but I had the benefit of hearing his contribution—and he made that point then. The climate is difficult, and we live in what people have referred to as a compensation culture. His concern is genuine and I am sure that, if a distinguished medical practitioner says that it is a problem, we must take it seriously. I hope that my hon. Friend the Minister will address that point when he speaks later in the debate.

Andy Reed: On consensus, it is clear that most people in the House would not want any form of euthanasia. For people such as me, who feel strongly about that, there is a certain amount of confusion at this stage about exactly what is being proposed. Having listened to my hon. Friend's contribution so far, I am looking forward to hearing more of it. I also have a great deal of sympathy with what the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) said, following our discussion earlier this morning. As my hon. Friend makes progress in his speech, will he enlighten us as to what he believes are the deficiencies of new clauses 1 and 2, and how his new clause would make the position much clearer, as many of us are genuinely struggling with this issue even at this late stage, despite the thousands of briefings that we have received from all parts of the country?

George Howarth: What my hon. Friend says reflects the anxieties of many Members on both sides of the House. I do not suggest that this should be the final word, but I think it relevant to remind Members of the wording of clause 58, entitled "Scope of the Act". It says
	"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)."

David Drew: Will my hon. Friend give way?

George Howarth: I will, if my hon. Friend will allow me to go on replying to my hon. Friend the Member for Loughborough (Mr. Reed) first.
	Both the right hon. Member for Chingford and Woodford Green and my hon. Friend the Member for Heywood and Middleton (Jim Dobbin) pointed out that the debate on euthanasia was a separate debate, although some Members might prefer it not to be. A Bill on the subject is currently before the House of Lords. To avoid any doubt, however, my hon. Friend the Minister chose to include clause 58, and I consider that helpful.

David Drew: rose—

Gerald Kaufman: rose—

George Howarth: I did say that I would give way to my hon. Friend the Member for Stroud (Mr. Drew). I will give way to my right hon. Friend after that.

David Drew: Some of us would find the whole debate much easier if Lord Joffe's Bill had reached this place and we had made a clear decision—which, in my case, would have been totally against euthanasia. The debate has a backcloth of uncertainty, which is why some of us are finding it difficult. Once we have put that issue to rest, we can return to what this Bill is trying to do. Would my hon. Friend care to comment?

George Howarth: To be honest, no. It is not that I am afraid of the argument; my hon. Friend is trying to get me to debate something that is not part of new clause 4 or amendment No. 2. As those who support new clause 1 have conceded, and as clause 58 makes clear, it forms no part of the Bill. I agree with my hon. Friend on one point, however. Had I had any responsibility for the programming, I would have concluded that it would be easier to have this debate if we had had the other debate first. But unfortunately we do not have that luxury, and must deal with what is before us.
	I promised to give way to my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman), but I feel that I should make progress after that.

Gerald Kaufman: My hon. Friend thought it appropriate, and necessary, to read out clause 58. Does he nevertheless agree that if the fear that the Bill would bring in euthanasia by the back door did not exist, the Government would not have found it necessary to table that clause? In seeking to say that the Bill is not about euthanasia, it demonstrates that however much the Government may try to dodge the issue, euthanasia is a factor in consideration of the Bill.

George Howarth: My right hon. Friend and I crossed swords in a slightly different context last night. I said then that I was always loth to enter into a disagreement with him, on two grounds: the ground that I have enormous respect for him, and the ground of self-protection.
	My right hon. Friend makes his own serious point in his own serious way, and I think it would be more appropriate for my hon. Friend the Minister to respond to it. I cannot take responsibility for my hon. Friend. I should be delighted to do so were he to ask me, but as he has never asked me I shall not.
	I have been trying for some time to make one or two general points about the amendment and the new clause before moving on to the more detailed argument. When I tabled the amendment, I was deeply conscious that I risked offending Members who have the same broad objectives as me, but wish to arrive at the same conclusion by a different route. To an extent, that risk has already been evident. I can only say that I recognise the absolute sincerity that those Members have brought to the debate, and hope they recognise that I am equally sincere. My disagreement with them relates not to their sincerity or objectives, but to how we can get to the best possible place. I believe that most Members, and most of the general public, want to get to the same place. The choice between the new clauses and amendments we are discussing is about how we get there. It is not that we want to be in different places; it is a question of which route we take.
	I hope that I shall not offend too many Members, because the hon. Member for Tiverton and Honiton and I are genuinely trying to build a realistic consensus. Like the right hon. Member for Chingford and Woodford Green, I am not a lawyer, but I have some years' experience as a Member of Parliament. That has given me insight into the need for the language of legislation to be kept simple, and the need always to be alert to the fact that the more words we apply to complex moral issues such as this, the more the meaning of those words and the intention behind them can cause confusion and lead to misinterpretation. For those reasons, as I said earlier, I have gone to a great deal of trouble to consult those who take a strong interest in this matter, in the House and elsewhere. That includes my hon. Friend the Minister.
	I do not claim that the wording of amendment No. 2 and new clause 4 is perfect as it stands, but I believe it serves the objectives that I mentioned a moment ago. In what I considered a thoughtful speech, the right hon. Member for Chingford and Woodford Green said that he wanted to apply a simple test—to find in favour of life. I do not think that I have misquoted him. That is why, in amendment No. 2, I refer in terms to that very issue. The presumption in the amendment is that it is in a person's interests to stay alive—to be alive—rather than the alternative.
	I made the wording simple because I think it carries the spirit of the Bill with it. It adds a qualification to the "best interests" referred to in clause 1(5). In other words, it is in the patient's best interests, in most circumstances, to stay alive. In my view, that gives a strong and clear signal to medical practitioners, and anyone appointed to act as a proxy or advocate, without giving them a set of instructions that in many cases they might be obliged to follow, even though they would not add to the comfort or dignity of the patient. Indeed, there will be cases in which the opposite will be the case.

Gordon Marsden: As was made clear at the start of the debate, a key issue is the ability of some advance decisions to be flexible. Does it worry my hon. Friend that, in taking account of what the best interests of a patient might be, doctors and medical authorities might place too much emphasis on what might or might not have been said by that patient five or 10 years earlier? We have all heard the eloquent description given by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) of the case of her mother, which is a classic illustration of why it is important to preserve flexibility. Does my hon. Friend feel that the wording of his amendment would allow doctors to make their decisions largely on the basis of the physical state of the person before them, rather than on what they might have said five or 10 years earlier?

George Howarth: This is a hugely complicated area, and I hope that so far I have avoided trying to score points or to make party political or other arguments. The reality is that the circumstances that my hon. Friend describes—and which were indeed described eloquently on a previous occasion by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas)—will not always be as simple as he suggests. There might be an advance directive or a living will that makes clear the person's wishes in terms that are appropriate in those circumstances. Most such cases could be dealt with, but it may well be that somebody has made an advance directive that does not take account of their current circumstances. Such cases will prove a struggle, and there is no way of avoiding that. There is the question of what is in the person's best interest medically, and the proxy's view as to what is in their best interest. Both will have to be taken into account.
	Let me deal briefly with an issue to which I shall perhaps return at the end of my speech—if I ever get there. [Interruption.] I am going as quickly as I can; I have accepted a lot of interventions. I accept that whatever we decide today, a great many cases will still have to be decided in the courts. That is an inescapable fact of life.

David Kidney: Will my hon. Friend give way?

George Howarth: If my hon. Friend will forgive me, I will not. There is a time limit and several Members seem to be indicating that I am taking up time that in their opinion, they should be able to use to express their views. For that reason, I shall not take any further interventions but move towards my conclusion.
	One of the strengths of the debate surrounding this issue has been the personal examples on which many people have been able to draw, not the least of which are the experiences that my hon. Friend the Member for Crosby described on Second Reading. Such experiences are difficult and emotionally wrought, and they have added to our understanding of what can go wrong, as well as what can go right. But we need to be conscious of the fact that it is very difficult to arrive at a general legislative proposition from particular examples. In fact, because each case is unique, it would be wrong to create a single template to govern an infinite variety of individual circumstances, and my fear is—I say this in as friendly a way as possible—that new clauses 1 and 2 do exactly that. They establish a set of instructions for people to follow in these very difficult circumstances. As the adage has it, hard cases make bad law.
	It was the hon. Member for Tiverton and Honiton who caused me to think further about this issue. Initially, I held the view that the "best interest" test, which first appears in clause 1(5) and subsequently in clause 4, was the right approach, in that it was sufficiently straightforward but also allowed adequate discretion as to what was appropriate in each individual case. However, the hon. Lady pointed out that in cases where hydration might not be appropriate, it could still be extremely uncomfortable for a patient to be left with a dry mouth, for example. Moreover, since such patients would probably be unable to communicate their discomfort, in many cases their need could be left unmet, either through lack of awareness—that is always a possibility in a busy hospital ward—or neglect, which is also possible. It was that concern that set me on this course.
	The British Medical Association tells me that this is a matter of basic care, which is normally down to good nursing practice. Thirst can be detected by a simple oral sponge test and remedied by proper oral care. I should make it clear that amendment No. 2 expects such basic care to be carried out in those circumstances.

Ann Winterton: Will the hon. Gentleman give way?

George Howarth: Yes, but this really must be the last time.

Ann Winterton: I am very grateful to the hon. Gentleman, who has made great efforts to simplify this issue. My only criticism of his amendment is that it asks the House to judge whether a person's life is worth while or otherwise; in my view, the issue should be not that, but treatment. He cites the BMA in respect of basic care, but he has not dealt with the issue, raised by my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), of withdrawal of hydration and nutrition in palliative care. We call such care basic care. Does the hon. Gentleman agree, and does he believe that it should not be withdrawn from a person who is not dying?

George Howarth: In the overwhelming majority of cases, the point made by the hon. Lady and the right hon. Member for Chingford and Woodford Green will apply, but as I have said, every case is unique. As the Minister made clear in an intervention, in some circumstances and in respect of some conditions, hydration and sustenance, far from helping, would actually make matters worse. I do not want to leave scope for any misinterpretation in that regard. Basic care is one thing; hydration and sustenance is another. In the overwhelming majority of cases, they will be the same thing, but in some circumstances they might not be. I want to make it clear that even in cases where hydration is inappropriate, it is not appropriate to leave somebody with a dry mouth, for example. That would be very uncomfortable for them, and it would make the dignity and comfort of their last hours worse, rather than better. Let the House be in no doubt about that.
	I and my hon. Friends the Members for Ealing, North (Mr. Pound) and for Dartford (Dr. Stoate) have tabled new clause 4, which deals with new clause 2 in simple terms; in fact, it consists solely of the first line of new clause 2 and eliminates the subsequent elaboration. I do not know what the Minister's response to it will be, but it is a genuine effort to retain the sentiment behind clause 4 without allowing it to be read as a set of instructions in every circumstance, which would be a mistake. That is the intention behind our provision, and if the Minister can satisfy me on this point I will be very happy indeed.
	If there is a flaw in amendment No. 2, as the Government amendment to it implies, I stand ready to correct it and I will listen very carefully to the Minister's explanation as to why his amendment is necessary.That apart, I believe that my amendment strikes the right balance. It accepts that sustenance and liquid will normally be made available, but by stating the principle in simple terms, it allows for cases where doing so is undesirable and not in the patient's best interests. To put it starkly, I believe that it avoids setting up a practice that too often leads, albeit unintentionally, to people being attached to tubes or subjected to other invasive procedures to no useful purpose, with all the attendant discomfort and indignity caused to people in their final hours.
	I commend the amendment to the House. Subject to what the Minister says, I hope that we can form a consensus around its principles and make the legislation better.

Paul Burstow: I rise to speak primarily in support of my amendment No. 46, but also in support of the amendments and new clauses proposed by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth). I shall also speak to support the proposals tabled by the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) that I have also signed.
	I want to make it clear from the outset that I do not believe that the Bill gives the green light to euthanasia. That is not just my view, but that of the Catholic bishops conference, which said in its briefing to the Bill on Second Reading:
	"We had argued that the inclusion of a clause such as Clause 58 was the minimum required to provide the necessary assurance that nothing in the Bill permits euthanasia. With such a clause now in the Mental Capacity Bill, together with other important changes made to meet our concerns, we do not believe that the Bill can be described correctly as a Bill introducing a permission for euthanasia".
	That is an important and clear statement. Some of the press comments on the Bill seem light years away from the measured tone of the Catholic bishops. Some of the reporting over the last few days has been ill informed, misleading and, in going out of its way to frighten people, arguably mischievous. That is a real cause of concern.
	The Bill is about giving people who lack capacity greater control over their day-to-day lives.

Kevin McNamara: rose—

Paul Burstow: If the hon. Gentleman has a question about the Catholic bishops, I am more than happy to take his intervention now.

Kevin McNamara: I am most grateful. The hon. Gentleman cited what the Catholic bishops said. However, they also said that although clause 58 could not be correctly described as introducing a permission for euthanasia, which would have meant opposition for that reason, it still had two serious and remediable weaknesses. They said that, unless the weaknesses were addressed, the Bill could still unintentionally become a vehicle for euthanasia by omission or withdrawal of medical treatment.

Paul Burstow: The hon. Gentleman is right. That is why, in Committee, I tabled an amendment that was not dissimilar to the new clauses before the House today. It posed the question of the central purpose behind the action. Is it to hasten a person's death or is it to palliate and provide care, comfort and support? That is central to today's debate and I am clear in my personal view that the new clauses provide the additional reassurance that both the Church of England and the Catholic bishops conference are seeking from the House today. That is why I started my remarks by observing that they have been assured on certain points, but the hon. Gentleman is quite right to draw attention to the fact that some further matters remain before the House today.
	As I was saying, the Bill is about giving people who lack capacity more control over the way they live their day-to-day lives. Understandably, our debate is focusing on end-of-life decision making, but the bulk of the Bill is about the millions of people in this country who lack capacity to take decisions and it provides a proper framework in which they can take more decisions and exert more control over their own lives. It is about decisions as simple as what people eat, what they wear, when they go out and when they go to bed; everyday decisions that we in the House and many of our fellow citizens take for granted.
	The central purpose of the Bill is to maximise the opportunities for people to take such decisions for themselves. It enshrines in law a new starting point—a presumption of capacity—and only when it is proven that capacity is lacking can someone else start to take proxy decisions. Those outside the House who want to portray the Bill as somehow having an evil intention are doing a disservice to millions of our fellow citizens who will benefit from it. That, as well as the concerns of the Catholic bishops and others, needs to be put on the record.
	That does not mean that certain issues do not remain to be debated at this stage of the Bill or that the new clauses and amendments in the group would not help to further strengthen the safeguards. Indeed, the Bill will be strengthened considerably if they are passed today. I do not mean to imply that no further safeguards are needed in respect of such matters as advance decision making. I believe that, as a general rule, they should be put in writing, but that is sadly not the case in the Bill as it stands at the moment.
	I want to make it clear that Liberal Democrat Members have a free vote on new clauses 1, 2 and 4 and on amendments Nos. 1 and 2. I will personally support new clauses 1 and 2 and will deal in a moment with my reasons for doing so. The hon. Member for Knowsley, North and Sefton, East is right that people on all sides of the debate are trying to strike a balance and to find a way through and make it absolutely clear that the Bill is not about euthanasia. The best way of striking that balance is by testing opinion through free votes in the House. I regret the unwillingness in certain quarters to allow free votes on this matter. It reflects a weakness in the argument, but I appreciate that it is not the hon. Gentleman's fault.
	I want to speak to amendment No. 46. I believe that people have the right to expect that they will be cared for to the highest standards. The purpose of my amendment is to introduce an equal consideration clause into the statement of principles in the Bill. Such a clause would ensure that a person who lacks capacity is treated no less favourably than a person—any other person—who either lacks capacity or has capacity in similar circumstances. The purpose is to make it clear that proxy decision makers must banish their personal prejudices and attitudes when they come to act on behalf of a person who lacks capacity.

Brian Iddon: Is the hon. Gentleman aware of research showing that when a person is appointed a proxy or attorney—whatever one calls it—in many cases they do not always carry out the wishes of the person who gave them that power?

Paul Burstow: That is the sort of evidence that led me to draft my amendment before the House today. It is all about ensuring that a person who lacks capacity is treated no less favourably than a person who has capacity.

Tim Boswell: I have considerable sympathy with the hon. Gentleman's amendment. In cases of persons with learning disabilities, does he agree that there is a sad history of second-rate medical treatment—physical as well as in relation to their specific mental disability—because some members of the medical profession still somehow feel that they are less important priorities for treatment?

Paul Burstow: I am coming on to an example that addresses precisely that point. Sadly, that is what anecdotal, and some research, evidence suggests, so if we are putting in place statutory safeguards and arrangements for proxy decision-making, we must try to ensure that we avoid those pitfalls in future. That is what my amendment is designed to do. We should never make the assumption that life has less value for people who have difficulty in making decisions or need support to do so or who may not be able to make them at all. The adoption of the new principle would further increase confidence in the operation of the Bill.
	The amendment stems from evidence that has already been referred to and from anecdotal and other evidence that prejudices and attitudes about the quality of life of people with serious learning disabilities, serious mental health problems, head injuries or other conditions that affect capacity can get in the way of supporting those people as they are in respect of what they want and need. For example, decisions about treatment for elderly people or those with severe learning disabilities who lack capacity can sometimes be made by professionals on the basis that their lives are of less value than that of a much younger person.
	In other words, the date of a person's birth can determine access to treatment in a most unsatisfactory and inappropriate way. Such decisions can also be taken in a perfunctory way when it comes to consultation with families. There have been examples of families coming to visit an elderly relative in hospital to find a "do not resuscitate" notice hanging on the end of the person's bed without any proper dialogue with relatives or the individual in the bed about whether that was wanted. Amendment No. 46, therefore, will also complement families' new legal right to be consulted about the care and treatment provided to a relative who lacks capacity.
	In Committee, I raised a similar problem with the Minister, who argued that the Disability Discrimination Act 1995 and the Disability Discrimination Bill currently going through the House would provide protection for decisions and actions taken under this Bill. That may be so in many situations, but there are concerns that the Disability Discrimination Bill excludes a significant number of people who lack capacity. In particular, the requirement that a disability must have a long-term effect—and "long-term" is defined as a period of at least 12 months—will mean the people who lack capacity because of an illness or injury for less than 12 months will not be covered by the discrimination legislation currently going through the House.
	The Minister may say that such matters should be dealt with in the discrimination legislation, but I want to give the House an example. An older person who has an accident and loses capacity temporarily, but who is likely to recover, will still need professionals to make decisions on his or her behalf. Without the new clause as amended, there would be no protection for that person against prejudicial decisions based on age alone, especially if the person involved had no relatives to make representations. If the Bill makes no reference to discrimination legislation, it will create a lack of clarity for medical professionals and others about whether they are behaving in a lawful way.
	In the end, the courts will have to make decisions about the interface between this Bill and the Disability Discrimination Act 1995. Amendment No. 46 would close that gap and ensure that people are treated with equal consideration, regardless of capacity.
	I turn now to new clauses 1 and 2. The latest briefing from the Catholic bishops conference makes some important points. It states:
	"It is both moral and legal to withhold treatment when it is judged that the treatment, even if necessary to sustain a patient's life, is not in the patient's best interests because, given the patient's condition, the burdens it imposes are excessive compared with the benefits it offers . . . It is not true that life must be sustained at all costs . . . One can legitimately choose to forgo or withhold treatment because its burdensomeness is disproportionate to any likely benefit from it. One can do so even though one is sure that without it death will come soon, or come sooner."
	The new clauses recognise that reality. They accept that the courts still have jurisdiction in terms of making decisions. As the right hon. Member for Chingford and Woodford Green said, they do not change the Bland judgment, but they do prevent that judgment from being extended by means of a statutory provision. The focus should be on whether the treatment is beneficial or burdensome, and the aim is not to keep a person alive at all costs. Hon. Members noted earlier that we should not strive officiously to keep people alive and, ultimately, such matters must be settled in the courts.

John Pugh: Does my hon. Friend agree that one virtue of new clauses 1 and 2 is that they are highly specific? I have some sympathy for amendment No. 2, tabled by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth). Some people have criticised it and said that it may have the effect of reversing the Bland judgment. Will my hon. Friend comment on that?

Paul Burstow: One concern mentioned in the briefings is that focusing on quality of life, and on whether a person's life is worthwhile, causes us to miss the point. We should ask, "Is this treatment worthwhile?" That is why I shall not support the amendment tabled by the hon. Member for Knowsley, North and Sefton, East even though I know that it is well intentioned and attempts to bridge gaps.

George Howarth: I am greatly honoured to be patronised by the hon. Gentleman, and I am aware that there may be difficulties with the wording, along the lines described by the hon. Member for Southport (Dr. Pugh). I shall wait to hear what my hon. Friend the Minister has to say before I form my judgment.

Paul Burstow: I am grateful for that intervention, and I am sorry for the hon. Gentleman's misunderstanding of my comments on the amendment.

John Pugh: My hon. Friend and I seem to be conducting a dialogue through the hon. Member for Knowsley, North and Sefton, East), but I wanted to point out that, if the hon. Gentleman's amendment were amended by the Minister in the way proposed, it would lose the support of one of those who supported it originally.

Paul Burstow: I believe that that is so. I shall move on, as I do not want to patronise the hon. Member for Knowsley, North and Sefton, East any further.

Angela Browning: Will the hon. Gentleman give way?

Paul Burstow: I want to make one more point—I hope in a non-patronising manner—and then I will give way.
	Earlier, the Minister referred to certain forms of tumour that can grow larger as a result of continued hydration and nutrition. However, surely a court would decide that to withdraw treatment in those circumstances was to confer a benefit, as that would slow the progress of the condition and thus reduce the likelihood that the person involved would die sooner. That seems to be the debate that we are trying to have.

David Lammy: How is the benefit conferred by the amendment? We have all been working to ensure that no one can cause death, but the amendment as drafted deals with what is burdensome, and with a situation in which a person is unconscious. The Government have spoken to the medical professionals about the circumstances of people with cancer, because we are in sympathy with the aims of the amendment. They have told us that ANH might hasten death, but that that is not covered by the amendment as drafted.

Paul Burstow: The Government have considerable resources when it comes to drafting. The Catholic bishops have been very engaged with the Government, and very positive about their desire for dialogue. Today's debate is an opportunity to move that dialogue forward. If the Minister is able to reply to the debate by saying that he is seriously willing to enter into further dialogue with the aim of devising an amendment that would achieve a closing of the gap that has been described, that would be fine and wonderful.

David Lammy: Conversations continue, and of course I will be saying that.

Paul Burstow: I hope that the Minister will make it clear that the intention is to find a further amendment that will address this concern.

Angela Browning: I want to have a go at trying to persuade the hon. Gentleman to vote for amendment No. 2, which deals with the principle of the matter. The Bill talks about many ways in which life can end, and it is always difficult to address such matters adequately, but the principle behind amendment No. 2 is that it is in a person's best interest for life to continue. That may be for only a short while, or in circumstances in which invasive treatment cannot be considered, but surely the principle that life must continue must be placed on the face of the Bill. If not, the Bill will be specifically about ending life, and it should not be about that.

Paul Burstow: No, it should not. I am still uneasy about the interaction between the drafting of amendment No. 2 and the new clause. The danger is that the Bill may be tilted towards asking whether a person's life has worth and so is worth saving. A better question is, "Is this treatment worthwhile and beneficial?" My amendment would try to change the presumption.

George Howarth: Will the hon. Gentleman give way?

Paul Burstow: The hon. Gentleman said earlier that many hon. Members wish to speak, and I do want to make some progress, but I will let him intervene.

George Howarth: I am grateful to the hon. Gentleman for giving way, but I think that he is misrepresenting amendment No. 2. The presumption in the amendment is not that it is the quality of a person's life that should be judged. It is simply that it is better for a life to continue than not to continue. Questions of quality have to do with what is appropriate in the period between a decision being made and the end of that person's life. As the hon. Member for Tiverton and Honiton (Mrs. Browning) said, that will vary in every case.

Paul Burstow: My anxiety is made worse by the fact that an amendment proposed to amendment No. 2 would delete the word "best", and water down the original in other ways. I accept that that is not the hon. Gentleman's doing, but that is the proposition before us today, and it gives rise to further concern.
	The amendments that I support are about clarity and reassurance. They are about ensuring that we are focused on treatment that is beneficial, not burdensome. We must make it clear that the courts still have jurisdiction in such decisions. Those amendments will be the subject of a free vote, but amendment No. 46 is about ensuring that regardless of whether someone retains capacity, he or she is treated in an equal fashion and is not the subject of prejudice, or bogus assumptions that lead to inappropriate treatment. That is the key to amendment No. 46 and I look forward to the Minister's response to it.

Brian Iddon: I speak in support of amendment No. 32, in my name and that of other right hon. and hon. Members. The amendment has the clear aim of removing advance directives, or living wills, from the Bill. I should say at the start that I do not belong to any pro-life organisations and I do not practise any religion actively, so I am not under any pressure from that direction. I am disappointed that we can have a free vote on beginning-of-life issues, but not on end-of-life issues. I would have preferred it if Labour Members had a free vote on this issue.
	I remind the Government that 102 Members of Parliament have signed early-day motion 336, which recognises that there is a problem with this Bill. I cannot vote for advance directives—sometimes ironically called living wills—to become part of our statute law, because they have always been abhorrent to me. However, to those who believe in them, I say that I have no objection to people making living wills provided that they remain in common law and are not enshrined in this Bill.
	I shall explain why I cannot vote to include advance directives in the Bill. First, we had a considerable debate on living wills when similar legislation passed through the Scottish Parliament. That resulted in the Adults with Incapacity (Scotland) Act 2000. The debate there resulted in similar clauses to those we are discussing being removed from the Scottish legislation. That is a significant point that we should remember. Secondly, the House of Lords Select Committee on Medical Ethics recommended in 1994 that advance directives should never be legally binding, as is proposed this afternoon. In paragraph 264 of its report, the Committee stated:
	"We suggest that it could well be impossible to give Advanced Directives in general greater legal force without depriving patients of the benefit of the doctor's professional expertise and of new treatments and procedures which may become available since the Advanced Directive was signed."
	The rest of the report contained similar comments.
	Thirdly, there is the uncertainty cast on advance directives by the recent challenge to them by Leslie Burke of Lancaster. The General Medical Council has appealed that decision and Parliament is awaiting the result, but it is pertinent to the decision that we will take this afternoon. Leslie Burke made the point that advance directives are very negative. One can ask the doctor not to do things, but one cannot ask the doctor to do things. That is the challenge by Leslie Burke and it is pertinent to our vote today. I cannot vote for advance directives when I do not know the result of that appeal.
	Fourthly and significantly, the 23rd report of Session 2003–04 from the Joint House of Commons and House of Lords Committee on Human Rights, published as recently as 29 November, casts serious doubts on the Government's assertion that the Bill is compatible with human rights legislation. The Joint Committee believes that the Bill raises serious human rights concerns, which include putting advance directives in the Bill. It was not that long ago that the Government were against including advance directives in statute law. Why have the Government done a U-turn on that?
	I accept the good intentions of the Government in introducing the Bill that has had a long gestation—about 15 years, in fact—and I am only sorry that the Bill has been spoiled by the failure to listen to its opponents. I am very disappointed that it came out of Committee unamended. Not a single principal amendment was accepted in the course of a fairly long Committee stage, and that concerns me.
	My fifth point is my real message: it is not what is in the Bill that counts, nor even what is left out of the Bill, but the signal that the Bill sends. I shall explain that by reminding the House of the origins of advance directives. They were launched in the United States of America in 1969 in a law journal article entitled,"Due Process of Euthanasia: The Living Will, a Proposal". That is the paper from which the subject of our debate arose. In 1977, a US health department official, Robert Derzon, advised President Carter to
	"change social values regarding cost-inducing activities".
	He continued:
	"The cost-saving from a nation-wide push toward Living Wills is likely to be enormous. Over one fifth of Medicare expenditures are for persons in the last year of their life".
	In 1991, the US Government made it compulsory for all patients admitted to a hospital, for whatever reason, to be presented with living will forms to complete. We might argue that that could never happen here. Well, it just has. In 2003, the Hammersmith Hospitals NHS Trust decided that it would offer living wills to all those admitted. It was followed by Imperial college hospital. Will that bandwagon roll further? Will the Government allow the NHS to give everyone admitted to hospital a living will? If someone is given a living will on entry to hospital, it puts them under pressure at a time when they are already sick and possibly depressed. What a time to give people a living will—as they are admitted to hospital. I condemn Hammersmith Hospitals NHS Trust and Imperial college hospital for that.

Angela Browning: Given that the Bill is about people who lack capacity and would be unable, therefore, to fill in such a living will, should a relative be able to fill in the form for them?

Brian Iddon: I do not know what Hammersmith Hospitals NHS Trust has in mind. I do not know the details of its agreement. However, I would be worried about it whether or not a relative filled it in. I am against the principle, which comes from the US.
	Is it any wonder that some of us link the Bill to euthanasia? In fact, the Voluntary Euthanasia Society and other organisations appear to be behind the move to enshrine advance directives in the Bill. If they are successful this afternoon, they will get a signal that the bandwagon is beginning to roll. There have been three attempts, including this one, by people such as Lord Joffe, to bring assisted suicide or voluntary euthanasia before Parliament. This Bill sends out the signal that the Government might—I emphasise the word "might"—be willing to listen to those people at some time in the future.
	Let us be fair to the Voluntary Euthanasia Society—it is, after all, one of the main propagators of living wills: its path is clear and if we do not know that, or cannot understand it, we should. Its path is to bring assisted suicide, or voluntary euthanasia, to this country, as has happened in the Netherlands, Belgium, Oregon and elsewhere. I am against that.
	The bioethicists march on. In a leading article, published in 1997 in the "Hastings Center Report", one of the pre-eminent journals on bioethics, Professor John Hardwig argued that there was a duty to die and published criteria to help people make that decision. I am horrified that in the Daily Mail this week, Baroness Warnock told the elderly something similar, under the headline, "Kill yourself, so you won't be a burden". That is reprehensible stuff. Where is the country going?
	People can change their mind. My hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) gave us an example when she talked of her mother. The respected journalist Claire Rayner signed a living will. Unfortunately, she had to go into intensive care where doctors could twice have switched off her life, but her relatives were not happy about it. I do not think that the doctors were happy either, but at the time living wills came under common law—not statute law. She survived and the first thing she did when she came out of hospital was to tear up her living will.
	At a conference in Holland in 1990, right to die groups pushed a pamphlet on living wills; on the back was the heading, "The Living Will: Passport to Euthanasia". If Members do not believe that people who push living wills will not be pushing assisted suicide or voluntary euthanasia next, they are living in cloud cuckoo land. That is why I am so against enshrining living wills in the Bill, and that is why I shall vote against it today, good as other parts of it are.
	At a meeting of the education council of the Euthanasia Society of America, a new document was proposed, whose stated purpose was to provoke a gradual change—a gradual change—in public attitudes to euthanasia. The author of the document also made a link between living wills and euthanasia. That is why some of us—perhaps only a minority—link the application of living wills under the Bill to euthanasia by omission, if not by commission. People who sign advance directives are usually convinced that they are taking greater control of their life, whereas in fact they may be giving up control of their life. That is one of the dangers.
	The concept behind an advance directive must surely be that the patient be allowed to die with dignity and in the absence of pain, yet by refusing some medical treatments the patient could suffer a lengthy, painful and bedridden existence, simply because they wanted doctors to carry out an advance directive.
	I am also concerned about the pressure that such provisions would put on the health service. The Minister wants people to obtain advice from their doctors, but are not general practitioners already hard pressed? How would such provisions operate in a hospital, especially in an accident and emergency department? How much bureaucracy will they pile on the NHS? If living wills are accepted in the Bill, more people will think, "They're a good thing, I'll make one, too." Relatives will start to talk. The whole process will gain momentum—the very thing the Voluntary Euthanasia Society wants. The more of them that are written, the more bureaucracy will be piled on the NHS. That is another reason why I am against enshrining advance directives in the Bill.

Patrick Hall: Does my hon. Friend agree that there is no euthanasia under English law, only murder, and there is no way under English law that a person can ask someone else to murder them?

Brian Iddon: That is true, but I am talking about euthanasia by omission, which would be the danger under the Bill, and about which many of us are worried.

Iain Duncan Smith: May I, through the hon. Gentleman, answer the question put by the hon. Member for Bedford (Mr. Hall)? If one withdraws food and water from someone, one brings about their death. That may not be termed murder, but it is exactly the same thing.

Brian Iddon: I do not want to comment on that point of view. I respect the right hon. Gentleman's opinion.
	I am concerned that we are developing negative attitudes in our health care and social care systems. We hear about the burden of care and we talk about the quality of life as though people who have a poor quality of life should no longer live. Those are negative attitudes. We should rejoice that people have had a good life and help them to die in dignity. We should promote palliative care and hospices. We should fund children's hospices properly. That is the direction that Parliament should take, rather than the negativity of some parts of the Bill.

David Lammy: Does my hon. Friend agree that there are currently three positions on this matter? He makes a strong and impassioned case for altogether abandoning living wills and advance decisions. Under common law, people can seek to make living wills. People with Alzheimer's want to be able to say, "This is what I want to happen to me when my mental faculties go completely"—which is why the society supports the provision—and that is what they tell their loved ones. We either abandon living wills altogether, as my hon. Friend says, or we seek to make them safer and stronger so that the clinicians who have to apply them can do so in the right circumstances. In essence, that is the situation that we are debating.

Brian Iddon: I never said that we should abandon living wills altogether. People have a right to make them, if only to flag up their wishes to their relatives—if not to their doctors—but I do not want to enshrine them in the Bill and send a signal to the Voluntary Euthanasia Society that it is winning the argument. That is the point I was trying to make.

David Lammy: If we leave living wills as they are, they remain unregulated, unsupervised and unchecked. Doctors tell us that they do not know where they are.

Brian Iddon: As I have tried to explain, if we accept the provisions in the Bill, more people will think that living wills are a good thing. I have already explained the consequences of that so I shall not go over that ground.
	Other Members want to speak, so I shall finish by reading out a statement that was referred to on Second Reading, but it is worth repeating. The pro-euthanasia bioethicist Dr. Helga Kuhse said:
	"If we can get people to accept the removal of all treatment and care—especially removal of food and fluids—they will see what a painful way this is to die and then, in the patient's best interests, they will accept the lethal injection."
	I do not want to take even the first step on the path that the Voluntary Euthanasia Society wants us to tread, and that is why I shall vote against the inclusion of living wills in the Bill. I hope, Mr. Deputy Speaker, that you will put amendment No. 32 to the vote.

Ann Winterton: I support new clauses 1 and 2. Neither has been proposed because we, on our side of the argument, are vitalists who seek to preserve life at all costs. It is right that we must limit medical care where it will not work, where it is futile or burdensome, and that is done regularly in clinical practice. However, that is a different matter entirely from requiring, as the Bill would in certain circumstances, that treatment and/or assisted food and fluids be withheld or withdrawn from non-dying patients. The question should always be: is this treatment worth while? It should not be: is this patient's life worth while? That is why I cannot support amendment No. 2, tabled by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth).
	I want to speak, as briefly as I can, on best interests in relation to amendment No. 1, because the Bill pivots around the definition of best interests. All acts done or decisions made under the Bill for or on behalf of a person who lacks capacity will be required to be done or made in his best interests, but the Bill's explanation of best interests makes no reference to the fact that persons, even when unconscious of or mistaken about their interests, have an objective interest in their own life, health and well-being. Instead, it says:
	"In determining . . . what is in a person's best interests, the person making the determination must consider all the circumstances appearing to him to be relevant."
	The Government have tabled an amendment to clause 4 that would introduce a slightly greater element of objectivity, but I do not believe that that amendment is sufficient.
	The Bill goes on to say that, "in particular", there must be consideration of a range of factors, all of which relate to predicted capacity or incapacity, participation in decision making,
	"past and present wishes and feelings . . . beliefs and values that would be likely to influence his decision if he had capacity, the other factors that he would be likely to consider if he were able to do so",
	and the views of interested persons on
	"what would be in the person's best interests and, in particular, as to the matters"
	just mentioned. Those matters to be considered "in particular" all relate, as can be seen, to subjective interests—desires, wishes, beliefs and values—not to the real dignity and value of the person's existence: life, health, and well-being as such. What is to prevent or even discourage those making such determinations from determining that it is in a patient's best interests not to receive treatment, that it is in the patient's interest to die because "That is what they would have wanted"? How many times have we heard that—even when a reasonable medical judgment would show that treatment would be neither futile nor unduly burdensome, but beneficial?
	The Government say that medical professionals will continue to use the traditional concept of best interests, which includes the patient's interest in life and health as central elements of his or her real welfare, but is it reasonable to suppose that professional attitudes will not be affected by the subjective character of the Bill's approach to best interests? I remind the House that the ethics of the medical profession, as has been rigorously documented and demonstrated, were rapidly and profoundly affected for the worse by the Abortion Act 1967. I do not think that anyone could disagree with that statement.
	Does the word "circumstances" securely imply a reference to the person's intrinsic interest in health and life? Will the medical insurers whose advice affects professional thinking regard it as safe for medical professionals to think in terms of medical best interests when proxies appointed under clauses 9 or 16 have made determinations relying on non-medical, subjective criteria? Is it not highly significant that those proxy decision makers will not be subject to the professional responsibilities and ethics that the Government presume will continue to apply to medical professionals? Is it even clear whether the new offence of ill treatment or neglect by a proxy will include improper determination of a patient's best interests, or refusing treatment on the basis of such an improper determination? How many doctors will have the time, energy and motivation to ask a court to override a proxy whose determination of best interests appears to them defective or questionable?

Julian Brazier: I am most grateful to my hon. Friend for giving way in her powerful speech. Did she see the testimony in The Times only a week or two ago that related to a case where the doctors were continually pressed by the relatives who constantly visited a lady of 59, to give her more and more pain killers to a clinically dangerous degree? Only when she turned 60 and the relatives ceased to turn up, did the doctors discover that they had a life assurance policy to be paid if she died before she was 60.

Ann Winterton: I did not see that story, but it is horrific, and I am grateful to my hon. Friend for drawing it to the attention of the House. I had a letter from one of my local hospices to say that the only time that its staff have been pressed to end a patient's life more quickly than it would have ended naturally, or ended through the double effect, was when the relatives would have benefited from the patient's will.

George Howarth: Does the hon. Lady accept that, in the example given by the hon. Member for Canterbury (Mr. Brazier), it would be wholly wrong for a member of the medical profession to go along with such a request?

Ann Winterton: I believe that it would be wholly wrong for a member of the medical profession to go along with such a request, but the case is well documented, so it has happened. I did not see the story; I merely believe what my hon. Friend has said.

Michael Jabez Foster: Will the hon. Lady give way?

Ann Winterton: I intend to make a little more progress.
	The Government say:
	"It is not possible to introduce the concept of 'medical' best interests into clause 4 because the Bill does not only apply to medical situations."
	Can that sensibly be thought an adequate reason? In the absence of amendment No. 1, there is a severe risk that the objective interest of vulnerable patients may be submerged by the wishes—now given statutory force—of persons who may have a conflict of interest with the patient, or by wishes, feelings and concerns of the patient that may now acquire statutory force, despite having been unduly narrowed or deflected by inclinations or external pressures towards self-destruction, or simply by lack of self-respect. How can it be right to leave such important elements of the Bill's central concept to be dealt with in a code of practice? Surely, all decisions taken in respect of the personal welfare of a mentally incapacitated patient must be in his or her best interests. Best interests is the pivotal principle in the Bill, so we must get the definition of best interests right.

Angela Browning: I think that I heard my hon. Friend say that she did not support amendment No. 2, but that defines very clearly that the fundamental assumption should be that the person's best interests are for his life to continue.

Ann Winterton: I gave the reasons earlier why I do not believe that amendment No. 2 is the right one to support because it poses the rhetorical question of whether we consider that person's life is worth while or beneficial. In my view, it should have referred to the treatment, so we have a slight difference of opinion.

Angela Browning: That is not what is written in amendment No. 2, on page 46 of the amendment paper. I wonder whether my hon. Friend will take a look at it again.

Ann Winterton: Yes, I shall, and I have amendment No. 2 in front of me. Let me read it out:
	"He must, where the determination relates to life-sustaining treatment, begin by assuming",
	which is weak in itself,
	"that it will be in the person's best interests for his life to continue."
	The amendment would have been better if it said, "that it will be in the person's best interests for the treatment to continue"—a slight difference of opinion.
	It is vital that an element of objectivity is introduced into the definition of best interests by making it clear in the Bill that the consideration of best interests must take into account the patient's medical or clinical best interests. In common law, the term "best interests" includes treatment given to save the patient's life, or to improve or prevent deterioration in the patient's physical or mental health. Surely, it is relatively simple to establish whether a given treatment is appropriate to saving life and preventing deterioration, for example. That can be proved reasonably objectively on the basis of evidence of a physical examination of the patient and expert testimony on the treatment proposed.
	The disability rights groups are very concerned about the Bill's definition of best interests. Disability Awareness in Action says:
	"The Mental Capacity Bill will permit appointed deputies, independent consultees and those given lasting powers of attorney to make serious medical treatment decisions based on the 'best interests' of the 'incapacitated' person. But how is 'best interests' defined? It can essentially be anything those making the decision want it to be. Past and present wishes and feelings of both the individual and their family can be taken into account. Guesses as to what the individual may have wanted! This is totally unacceptable when such decisions could involve the withdrawal of treatment."
	For those and the other reasons that I have given, I believe that in the definition of "best interests" we must include the most essential element, which is the life and health of the person involved.

Kevin McNamara: On a point of order, Mr. Deputy Speaker. A letter sent to the Lord Chancellor by Archbishop Peter Smith of Cardiff has just come into my hands. It seems to say that the Government have given an undertaking to him about the content of the debate today, which to some extent could terminate the Bill. He says:
	"My understanding now is that you are giving an undertaking to make explicit in the Mental Capacity Bill that the Bill does not authorise any 'decision' where the motive is to kill, as distinct from relieving or preventing suffering or ending treatment where the patient is in an irreversible coma.
	In the context 'decision' includes of course an act or omission, and extends to decisions made by proxies or others given powers by the Bill to decide whether or not a person is given life sustaining medical treatment. Any decision must be in the person's best interests.
	I greatly welcome this undertaking—"

Mr. Deputy Speaker: Order. I think that I have got the general drift of what the hon. Gentleman is trying to say, but it is more of a contribution to today's debate than a matter for the Chair.

Tim Boswell: Further to that point of order, Mr. Deputy Speaker, I should be grateful if you could make inquiries about whether such a letter has issued from a Government Department without the Minister giving any intimation to the House that it was in his mind to do so.

Mr. Deputy Speaker: Order. I think that we should continue the debate. The Minister will have the opportunity to wind up in a little while. No doubt he can deal with both points then. We are now taking time out of the debate. I think that the hon. Member for Hull, North (Mr. McNamara) wishes to catch my eye later, as do other hon. Members. He will not be lucky if we take up any more time now on the matter that he has raised.

Tom Clarke: The points that have just been made are crucial to the decision that the House might take later. It would be helpful if the Minister dealt with the second to last sentence in the letter from Archbishop Peter Smith, which says:
	"I greatly welcome this undertaking which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."
	It is vital that my hon. Friend the Minister should clarify whether that reflects the Government's position. The House is entitled to know.

David Heath: Does the right hon. Gentleman agree that it would be a contempt of the House if such an undertaking had been given and the House had not had the opportunity to express an opinion on wording of that sort during the Report stage of an important Bill?

Tom Clarke: We must not fuel the atmosphere. It is important that we take the right decisions. I have confidence that my hon. Friend the Minister will deal with the serious points in the way that the House would expect.

Angela Browning: Will the right hon. Gentleman give way?

Tom Clarke: I will not give way too often because some of us are frustrated that, having served on the Standing Committee which considered the Bill, we may well be talking out others who gave equal time to the Bill at other stages. However, I will give way to the hon. Lady.

Angela Browning: In the context of the Archbishop's letter—he talks about best interests—has the right hon. Gentleman noticed that, in an amendment to amendment No. 2, the Government seek to delete the word "best"?

Tom Clarke: That is all the more reason why what the Minister has to say becomes profoundly important. I look forward to it.
	I will now make the brief speech that I wanted to make at this point. In most of the debates, including Second Reading, I concentrated my remarks on the parts of the Bill that dealt with advocacy. I hope to have the chance to speak on that aspect later. That did not mean that I was not interested in the end-of-life issues. I am profoundly involved in all the discussions that are taking place, especially in my constituency, where I have received many representations and people are anxious to hear what we decide today.
	The fact that I did not take part in most of those discussions in Committee did not mean that that was the position in Coatbridge and Chryston. I want to summarise what my constituents feel and what they expect from today's debate. It could become extremely complex. Indeed, very often in Committee, it did. We had opinion and counter-opinion, but I supported Second Reading in order to give the Government the opportunity to clarify where they stood.
	I regret to say that I left Committee thinking that this was unfinished business on two crucial issues. That is why I am attracted to new clauses 1 and 2. I found very acceptable the views of my hon. Friend the Member for Heywood and Middleton (Jim Dobbin) and of the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith). Although we could make the matter complex, it seems to me, having listened to hours and hours of debate, that there are two issues that need to be resolved, two issues that call for clarity and two issues that do not seem to me to be intellectually demanding.
	On the issue of food and liquid—hydration and nutrition—have we made it clear that our priority is in respect of treatment and not of life? Have we made it clear that we are on the side of the patient until the end of his or her natural life? As this is all about perception, I want the medical profession to know where it stands. I do not want to see court case after court case. The obligation is on us to offer that clarity. That is one of two important issues on which simplicity invites itself. It is whether hydration and nutrition can be withdrawn legally—something that all of us, because we have said that we are opposed to euthanasia, do not want to see. We are entitled to an answer to that question. I am afraid that we did not get it during the whole process of consideration in Committee.
	The second point was raised at great length in Committee and in the Second Reading speech of my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas). What is the mechanism for taking on board the view of someone who, at an early stage in their life makes a written will, gives their instructions, signs an advance directive or gives some indication that they want to do so and later changes their mind? Those were the two crucial end-of-life issues, and they have not been resolved.

Edward Leigh: The right hon. Gentleman is making a clear and cogent speech. The debate has been over-complicated, and he is trying to set matters right. Is there not a third point that has to be articulated strongly? It is surely the point of new clauses 1 and 2. The decision of proxies or the existence of the advance should not override the clinical judgment of a doctor, which at that stage may well be to preserve life and provide treatment.

Tom Clarke: If I were to follow what the hon. Gentleman says, I think that I would make things even more complicated. I have no desire to do that because I am trying to stick to the simple issues that have emerged after long discussions and on which I have received many representations from my constituents.
	I plead with my hon. Friend the Minister to offer much more clarity on the two issues that I have raised than has been the case so far. Incidentally, I do not agree with my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) because I think that Ministers acted before the Committee with great courtesy. Clearly, however, they are carrying out whatever Government directive has been given to them, although I know that they will take on board the strong views expressed by hon. Members on both sides of the House.
	The scrutiny of the Joint Committee has helped our considerations. The Committee was headed by Lord Carter, who is a fine person, and was made up of Members of the Lords and Commons. On the Committee's advice, a clause to exclude euthanasia was included in the Bill. I accept that, but why then are people including representatives of the Church of England and the Catholic Church—until we receive an explanation about the archbishop's letter—still pressing for the clarification that I am seeking? I suggest that it is because they think that they have not received answers to the two simple questions that I posed. I also suggest that they rightly have it in mind that the Bill deals with a special group of people. All individuals in the group have a right to life, but nevertheless experience limited capacity. For that reason, they are entitled to even more protection from the House in our legislation than might otherwise be the case, and I hope that we will decide to give them that following today's deliberations.

Robert Key: At the beginning and the end of human life, science, medicine and technology are rapidly pushing out the boundaries of the possible. Humanity moves on, as must we, but we must decide where to draw the line on behalf of the people of this country. Only last week I met a constituent in the House of Commons who had been in a coma for a year following a vehicle accident. His parents had been asked whether they agreed to the withdrawal of his hydration and nutrition. They said no, and five years later that young man is running his own business in Salisbury.
	Fortunately death is no longer a taboo in this country, and we have heard moving personal testimonies to that today. Our personal experiences always colour the way in which we think about such matters and no doubt the way we vote. I am no exception to that. I recall having to make a life-and-death decision about my baby son while my wife was under sedation—that was one of the loneliest decisions I ever had to make, although I am confident that I made the right one. Many of us have seen our parents dying, and I saw my dear sister-in-law dying from motor neurone disease, so I have my own opinions, just as I have my own faith to cope with that. However, what about the views of others? We must all have been influenced by the views of charities, the Making Decisions Alliance and other people and organisations who have been in touch with us.
	I shall vote to give the Bill its Third Reading, but first, on behalf of my constituents, I want to try even at this late stage to improve it. We in Salisbury are fortunate to have the Salisbury hospice care trust, which is made up of a group of dedicated professionals and clinicians who are held in the warmest esteem throughout our community. Indeed, I think that they are part of our extended family in Salisbury. I held conversations only this morning with several retired professionals who had worked in palliative care. I also asked a practising sister on the ward and a consultant in palliative care for their views this morning. Perhaps the views of such people have not been heard to a great extent—they have certainly not been heard so far in this debate. The doctor said that advance directives were helpful because, as he put it, they help professionals to know what makes a patient tick. Forward care planning is seen as a good thing from a clinical point of view because it opens up lines of communication that would otherwise not exist. However, there is great concern about the validity of advance directives that were made 20 or 30—or even five—years previously. We need solutions to the problems that patients will face as they come closer to death.

Andy Burnham: The hon. Gentleman mentions patients making choices as they get closer to death. Does he accept that in some cases, albeit not all, a powerful survival instinct takes over meaning that patients can display amazing powers of recovery of which they might not have been able to conceive? Does that not emphasise the purpose behind the amendment tabled by my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth): when possible, the presumption should be in favour of saving life?

Robert Key: I entirely agree that the presumption must be in favour of life.
	As the clinical staff put it to me, they face the problem of "demedicalising" end-of-life care when they know that they can do nothing further. Once again, they are taking a new view as medical technology moves on—it is doing so rapidly. I have never spoken to anyone in the hospice movement who is in favour of euthanasia, but it is a sign of the times that end-of-life care is changing in the way in which the Bill represents.
	I have been greatly moved by what my constituents have said. I was pleased that Church of England bishops, in addition to the Roman Catholic Church, expressed concerns in the past year or so. Church of England bishops tell us that difficulties remain with withholding and withdrawing assisted feeding and hydration. They have been in touch with many hon. Members about amending the Bill by including a presumption in favour of continuing life-sustaining treatment, yet not requiring such treatment in inappropriate circumstances. As the Bishop of St. Albans said in a letter to The Times this morning:
	"If such clarifications can be put in place we would conclude that the Bill's safeguards in this area are probably satisfactory."
	It is important for us to realise, as the bishop says, that the
	"Bill deals with complex and difficult issues on which morally sensitive people can disagree."
	There has not been a great deal of disagreement in the debate thus far. I believe passionately that the House of Commons is the place in which such debates should be held. On beginning-of-life issues, we know about the tangle into which the Human Fertilisation and Embryology Authority has got because it is has been asked to do too much within the framework of existing legislation, which has meant that the Government have had to review it. We do not need bioethics committees, but debates of this calibre in the House, with the one difference that all hon. Members should have a free vote.
	I shall support new clauses 1 and 2 because it is important to probe the Government to find out whether they are prepared to go the extra mile. If they win the vote, I have no doubt that the matter will be reopened in another place. The Bill is important and I am quite sure that it should receive its Third Reading after 15 years of debate in the country. However, we do not yet have the assurances that we require to be completely confident about it, so we look to the Minister to give us such confidence this afternoon.

Kevin McNamara: Thank you for calling me to speak, Mr. Deputy Speaker. I am glad that I did not go on for too long before.
	The letter that the Archbishop of Cardiff has sent to the Lord Chancellor in reply to his earlier letter will greatly affect the decision of many hon. Members. The situation would have been helped considerably if my hon. Friend the Minister had been able to give us some indication of the position at the start of the debate. If we had known that, it would have saved a lot of problems. Indeed, as my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) said to me earlier, it seems rather like the Government have lost a lot of the credit that they could have had on the matter by apparently holding on to the end. We have had to see an acrimonious row among their supporters before reaching a sensible conclusion.

George Howarth: rose—

Kevin McNamara: My hon. Friend spoke for more than half an hour, but I hope to speak for less than 10 minutes.
	The Government's attitude makes nonsense of some Government amendments—for example, the amendment that would remove the word "best" from an amendment dealing with a person's best interests. We have an undertaking that these matters will be dealt with in the Bill, but regrettably that will occur in the other place again, not in this place, before the elected representatives.
	The Archbishop states:
	"I accept that the Bill as thus made more explicit will leave unaffected the jurisdiction of the Courts affirmed in the Bland case",
	so there is no change from that case. The right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) said that he would have liked to see that change and so would I, but that was part of the arrangements that were made. The undertaking that we have received is an important one.
	I therefore welcome the decision. It makes a good Bill a very good Bill. A Bill that would help us to look after and care for people less fortunate than ourselves was asked for by all the non-governmental organisations that care for people with mental illness or mental incapacity. Those requests have now been met. Removing the fear of euthanasia by omission, as the Government have now specifically and directly undertaken to do, and writing that into the Bill is an important step forward and to a large extent overcomes the major prinicipled objection that I and others had to the Bill.
	There are other matters to which the Joint Committee on Human Rights, of which I am a member, drew attention in its last report. The Committee wanted advance directives to be in writing. I hope we will get that. The Committee stated that
	"the classification of artificial nutrition and hydration ("ANH") as treatment may not be well known to lay people. The requirement that an advance directive specify the particular treatment for which consent is refused in advance should mean in practice that a specific advance refusal of ANH would be required in order to be effective."
	The Committee wrote to the Minister about that, and I hope the reply that we receive will address both matters.
	The undertaking given by the Minister seems to back the decision of the High Court in the Burke case. One wonders whether the Government are helping the General Medical Council in its appeal against that case. In respect of withdrawal of treatment where there is no advance directive, the court pointed out that the guidance fell short because it seemed to accept that ANH can be withdrawn from patients who are not dying, if they are in a "very serious condition", and that it can be enough to justify withdrawing ANH from a patient who is not dying if it "may cause suffering" or be
	"too burdensome in relationship to the possible benefits".
	Important articles of the European convention on human rights are involved—article 2, on the right to life; article 3, on cruel and undignified treatment; and article 8, on dignity and privacy. The criticisms advanced by the Committee seem to have been met by the Government.

William Cash: The letter to which the hon. Gentleman refers mentions that the Bill does not authorise any decision where the motive is to kill. Will he compare the word "motive" with an alternative, such as "deliberate consequence"? Motive is a difficult matter to deal with. Does he agree that the words "deliberate consequence" might be better?

Kevin McNamara: That is a matter for the parliamentary draftsman. The archbishop may be a distinguished social theologian, but he is not a parliamentary draftsman. I think the archbishop and the Lord Chancellor know what they mean in this matter. The motive must be to end the life. The question has always been whether the withdrawal of treatment is to end the life, and not what is in the best interests of the patient and is not burdensome.
	On new clause 4, the failure of my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) to define "palliative care" will give lawyers a field day, whereas new clause 2 makes clear what is meant by "palliative care". Having seen the agreement that has been reached between the Government and Archbishop Smith, I will not vote against new clauses 1 and 2, but I will not vote for them because of the good will that I expressed to the Government for the undertakings that they have given.

Tim Boswell: I shall speak briefly, as I am conscious that the Minister has a good deal of explanation to give to the House. I begin by reminding the House that there will be a free vote on all occasions today for my party, as there is for the Liberal Democrats and others on the Opposition Benches. The nature of the exchanges today has perhaps taught the Government that on issues of conscience it is well worth offering hon. Members a free vote. The Government may find their response and the debate more constructive, and the Government may have had an easier ride if they had done that.

John Redwood: Has my hon. Friend been given a copy of the text agreed between the Lord Chancellor and the archbishop? Is this not a farce of a debate if we cannot have the words that the Government might want us to look at when we are arguing about other words, not knowing whether their amendment will be good enough?

Tim Boswell: I want to compress my remarks, but I shall come to the point that my right hon. Friend has raised.
	My second concern is the unwisdom of trying to force through a measure with inadequate time for debate. We could either oppose the programme motion, thereby wasting further time, or get on with it. With a little more consideration, we might have got on a lot better. If we had had the letter that enshrined an agreement reached by the Lord Chancellor with the archbishop yesterday, which is now expressed in a letter from the archbishop to the Lord Chancellor today, and if the Minister had at least been able to tell the House at the beginning of the debate three hours ago that he intended to speak to amendments along those lines, that would have been extremely useful.
	In response to my right hon. Friend the Member for Wokingham (Mr. Redwood), I must point out that there is no specific text yet. Anyone who has spoken, including the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), who has gone to great trouble to try and hammer out consensus in the matter, has been hung out to dry by the very recent decisions that have been taken.

George Howarth: The hon. Gentleman may feel, uncharacteristically, that he has to make the point that he has just made, but if the agreement takes matters forward, I will not feel that I have been hung out to dry. I will feel that we have achieved something.

Tim Boswell: I entirely share the hon. Gentleman's sentiments. If only we had had the information three hours ago, we could have gone on to other concerning issues such as research and had more time to debate the Bill. However, let us not waste time on that now.
	The genesis of the debate lies in what might be termed the legal defence—the argument that the concept of "best interests" already exists in common law, that advance decisions are permitted under common law, that euthanasia is explicitly prohibited by law, which is enshrined again in clause 58, and that euthanasia should not be divided as between acts of commission or omission, both of which are unacceptable under law. That is agreed, but there is, nevertheless, concern about how the law works in practice.
	For a modern statement of the position, I refer the House to the judgment reported in The Times law report on 9 December, in which the Court of Appeal considered and upheld a judgment by Mr. Justice Coleridge in relation to a person who lacked capacity. Rather than reading out the text, I shall summarise: it is clear from that judgment, which was upheld, that the withdrawal of non-intrusive hydration or nutrition in the absence of either an unequivocal advance decision, which did not apply in that case, or any conclusion by the court either that the person was in a permanent vegetative state or that the continuation of life would be intolerable would neither be permitted under the present law nor sanctioned by the Bill.
	That comforts lawyers, but real world concerns exist. First, past practice has often been uneasy and, frankly, disturbing. Secondly—the hon. Member for Bolton, South-East (Dr. Iddon) spoke eloquently about this—there is a euthanasiast agenda, which must be watched all the time and is not acceptable to this House.
	New clause 1 would introduce a separate test from the treatment provisions in relation to purpose. Personally, I would have preferred it to specify "the purpose" rather than "a purpose". From what I have seen of the text that the Government are considering, the word "motive" may appear rather than "purpose". However, the plain fact is that if one is considering matters of deliberate killing, motive is important as well as delivery, which might occur through the withdrawal of treatment.
	New clause 2, which I have signed and find acceptable, would stiffen the requirement on treatment. The hon. Member for Knowsley, North and Sefton, East worked long and hard to produce compromise amendments, which would have been helpful if we did not have the full text. Liberal Democrat amendment No. 46 is also acceptable in principle.
	The interesting amendments have already been referred to. I give the Government some credit for the objective test of relevant circumstances. I hope that the Minister understands that my amendment to his amendment is designed to put the burden on the decision maker of taking reasonable care to ascertain the circumstances rather than simply saying that they did not know anything about the case and could not therefore have taken the circumstances into account. I hope that the Minister will reflect on that specific point.
	We have all piled in with additional safeguards. My safeguard would ensure that any person who signs an advance directive is, as the Joint Committee on Human Rights suggested, clearly apprised of its implications for artificial nutrition and hydration. We await the Minister's response to the letter, which is due by tomorrow and has not yet reached the public. I also hope that he will consider the issue of instructions in writing—I cannot see why advanced decisions should not be in writing.
	I have compressed my remarks because the House has spoken for itself in its concern about those matters. We would all vote for greater and better safeguards than those so far offered by the Minister. This is not a good way to proceed and we could have saved ourselves a lot of time. However, the hon. Member for Knowsley, North and Sefton, East is right to say that it is better to get on with it now. If we get the matter right at the end of the day, the process will not concern us.
	We want further safeguards, which should not operate at the expense of the person without capacity. At the same time, they should not operate at the expense of either doctors or carers, because we do not want to create an unworkably intrusive system. We want to strengthen the Government's resolve and are irritated by the way in which the matter has been handled. The most important thing is to get the matter right for everyone concerned. We look forward to the Minister's response.

David Lammy: I am grateful to the hon. Member for Daventry (Mr. Boswell) for indicating that the important point is that we get the spirit right. We are debating the Mental Capacity Bill because we are concerned about protecting vulnerable people. Although today's debate has centred, rightly, around the difficult issue of what happens to vulnerable people as they approach the end of their lives, we should not forget that the entirety of the Bill concerns carers, parents and doctors who deal on a day-to-day basis with people who have Down's syndrome or autism and those who have had a stroke or been injured in car accidents.
	My right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke), the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith), my hon. Friends the Members for Knowsley, North and Sefton, East (Mr. Howarth), for Heywood and Middleton (Jim Dobbin), for Bolton, South-East (Dr. Iddon) and for Crosby (Mrs. Curtis-Thomas) and the hon. Members for Sutton and Cheam (Mr. Burstow), for Congleton (Ann Winterton) and for Southport (Dr. Pugh), along with many others, have been engaged in the discussion on a Bill that will help up to 2 million people.
	The crucial issue at the heart of this afternoon's discussion is the interface between euthanasia and assisted suicide and the Bill. The Government have proposed clause 58 because of the work of the Joint Committee on Human Rights. The Bill categorically states that nothing in the Bill is outside the law on suicide, manslaughter and murder.

Several hon. Members: rose—

David Lammy: We have also sought to work with the Catholic Church. We have introduced amendments on advanced decisions and objective measures.

Helen Jones: The letter that the Minister has circulated from Archbishop Peter Smith welcomes the undertaking given by the Lord Chancellor, but states:
	"which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."
	That would satisfy me and many hon. Members. Will the Minister give an undertaking that he will discuss the wording with both the Churches and hon. Members? The amendments will be tabled in the other place, so will he also undertake to make sure that there is sufficient time to discuss them when the Bill returns to this House?

David Lammy: Yes, absolutely. Let us not forget that the Bill began 15 years ago under another Administration. We have continued the dialogue and have engaged in discussions with both my right hon. Friend the Member for Bristol, East (Jean Corston), the Chairman of the Joint Committee on Human Rights, and Peter Smith. Notwithstanding the detail on the purpose amendment, which we will get into shortly and which centres on new clauses 1 and 2 in particular, the Government are with the sentiment behind those new clauses, but the wording and unintended consequences would cause some problems.

Jean Corston: The Minister knows the concerns of the Joint Committee on Human Rights, which I chair. We were particularly concerned about advance directives. People who are required to sign advance directives would have to say that they agreed to the withdrawal of treatment. We are concerned that they will not know that treatment includes artificial nutrition and hydration, which would put people, and sometimes their medical carers and families, in an impossible situation. Will he undertake to introduce measures to make sure that people give consent, that consent is independently witnessed and that the procedure is agreed throughout the medical profession? The consent should be in writing or, for people who are unable to write, some form that gauges intention.

David Lammy: I am grateful to my right hon. Friend, as is the Lord Chancellor, for our continuing discussions on this issue over the past few weeks. I can give her that undertaking. She will know that we put it in the code of practice, which has statutory power under the Bill. However, she has tried to see to it that advance decisions in relation to life-sustaining treatment are covered by the Bill, and I can give her that undertaking on the basis of what her Committee has said.

John McFall: It was my intention to vote for new clauses 1 and 2, but given the appearance of the letter from Archbishop Peter Smith of Cardiff and the commitments that seem to have been given, I ask the Minister to assure me that the spirit of new clauses 1 and 2 will be embraced as the Bill goes to the House of Lords and that constructive engagement will take place so that those who have objections can feel assured that they are being taken seriously.

David Lammy: I can say that. Let me come to new clause 1—

Several hon. Members: rose—

David Lammy: What I need to say—

Several hon. Members: rose—

Mr. Deputy Speaker: Order. I do not think that the Minister intends to give way at the moment. It would be helpful if he indicated whether he intended to give way to hon. Members when they stand.

David Lammy: I intend to make some progress so that I can explain the situation that we have reached today.
	I am of course sympathetic—

Crispin Blunt: On a point of order, Mr. Deputy Speaker. I think that it is important that this letter be clarified. The hon. Member for Warrington, North (Helen Jones) said that it had been circulated by the Minister, in which case he should simply say whether it reflects the position of the Government; that would assist everybody.

Several hon. Members: rose—

Mr. Deputy Speaker: Order. It would be helpful if the Minister were allowed to continue to clarify these matters.

John Redwood: On a point of order, Mr. Deputy Speaker. Would it be possible for us to have the Lord Chancellor's letter, as it is the most relevant document and it is missing from this debate?

Mr. Deputy Speaker: As I understand it, arrangements are now being made for it to be available in the Vote Office.

David Lammy: It is precisely because I want to explain the position that we have reached today that I am going to make some progress.

William Cash: On a point of order, Mr. Deputy Speaker. It seems to me that these proceedings are degenerating into something of a shambles. I am personally very much in favour of new clauses 1 and 2, but in the light of this letter, could we look to you to give us some guidance on the manner in which any amendments that are received in this House from the House of Lords properly reflect the matters that are being discussed? We do not want to find, I am sure, that inadequate time is given in this House to consider these vital matters, whatever the House of Lords may have to say.

Mr. Deputy Speaker: The hon. Gentleman is an experienced Member of this House, and he will understand that we will consider whatever amendments come back from the House of Lords in the normal way.

Several hon. Members: rose—

Mr. Deputy Speaker: Order. I do not want to stifle points of order, but time is running out, and I think that the Minister should be given the opportunity to respond. It would be helpful if he directed his remarks to the letter that seems crucial to the debate.

David Lammy: Can I say—

George Howarth: I am sorry to intervene on my hon. Friend, but in view of the assurances that he gave to my right hon. Friend the Member for Dumbarton (Mr. McFall), unless he can give a further explanation I will feel obliged to press amendment No. 2 to a vote.

Mike Hancock: On a point of order, Mr. Deputy Speaker. Further to what you said about the letter to the Lord Chancellor being made available to Members in the Vote Office, may we have an assurance that if it is not available before the vote at 3.30, the Minister will read the letter to the House before he concludes his speech?

Mr. Deputy Speaker: I am not in a position to direct the Minister in this debate, but I think that he should now be allowed to make his response.

David Lammy: Thank you, Mr. Deputy Speaker.
	I am of course sympathetic to hon. Members' concerns when they say that they do not want decisions surrounding the end of life to be motivated by a desire to bring about a person's death.

Iain Duncan Smith: rose—

David Lammy: I recognise that real reassurance is needed here. It is for that reason that we have continued to work with the Catholic Church to achieve that.

Several hon. Members: rose—

Mr. Deputy Speaker: Order.

David Lammy: That is why, as a result of the discussions in Committee—

Mr. Deputy Speaker: Order. The Minister really must obey the Chair. When Members stand in the House and ask the Minister to give way, it is helpful to the Chair if he indicates whether he intends to do so. Hon. Members are asking him whether he will give way, and he must indicate yes or no as he is speaking; otherwise, we will have Members standing up all over the House and we will not make the progress that the House wants to make.

Several hon. Members: rose—

David Lammy: I am not going to give way, because I must make some progress and cover these important issues.
	As a result of the discussions in Committee and outside the House, the Government tabled amendments Nos. 4 and 5, which enhance the best interests clause and deal with the points that were made by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) to ensure that someone does not substitute—

Iain Duncan Smith: Will the Minister give way?

David Lammy: I will not give way.
	They will ensure that someone does not substitute their own decision for that of the patient. I hope that hon. Members will read amendments Nos. 4 and 5, which will ensure that the provision is more objective.
	On the purpose clause and on palliative care, it is important—I say this particularly to the right hon. Member for Chingford and Woodford Green—that others proposed an amendment that would rule out any decision made with the purpose of causing death. I assure the right hon. Gentleman that we have looked hard at that amendment, and we have continued to work on it, particularly with the Catholic Church, but the problem with it centres on the issues of palliative care and of purpose, in that the definition, as framed, includes artificial hydration and nutrition. That would contradict Bland. The right hon. Gentleman has been clear that he is against the Bland decision, but the vast majority of people, including the archbishop himself, have sought not to overturn it.

Several hon. Members: rose—

David Lammy: I will not give way, as I want to make some progress and I am running out of time.
	The other key aspect of the amendment addresses the issue of offering pain relief to someone at the last stages of life, such as an elderly person with cancer who is given morphine where that may well hasten death but that is not the intention.

Tim Boswell: On a point of order, Mr. Deputy Speaker. I have just sent messengers out to the Vote Office, which has indeed circulated further texts of the letter to the Lord Chancellor from the archbishop. Apparently, however, it does not anticipate the receipt of any text of a letter from the Lord Chancellor to the archbishop.
	In these circumstances, and given that there are 12 minutes left for debate, the Minister—if I can concede a point to him—will have some difficulty, however hard he tries, in explaining this without a text. All this has arisen because we are under a tight programme motion. I believe that it would be open to Government Front Benchers now to move an emergency modification to it. Will they reflect on that, because at least it would give us a little thinking time to try to get the matter resolved?

Mr. Deputy Speaker: That is a matter mainly for debate, although I have to say that it would be much simpler had the letter been before the House before the debate started. I am loth to get involved in the proceedings from the Chair, but I do think that the Minister should direct his remarks to the questions that are being asked about the letter that seems to have played such a great part in our affairs this afternoon.

David Lammy: I am attempting to do that and, in so doing, explain the discussion that has been going on between us and others, including the Catholic Church, on the amendments. Offering pain relief to someone with cancer would not be covered by "burdensome" and other issues.

Helen Liddell: I am grateful to my hon. Friend for giving way and I hope to give him an opportunity to cut to the chase. The letter that we have received this afternoon from His Grace Archbishop Smith clearly responds to several commitments that the Lord Chancellor has made. It would greatly assist those of us who are in some doubt about whether to support new clauses 1 and 2 if my hon. Friend gave us the gist of the Lord Chancellor's commitments and read the comments of Archbishop Smith into the record. We could then end the debate harmoniously.

David Lammy: That is exactly what I intend to do. I want to explain that we have been seeking agreement and that discussion has, quite properly, taken place about such important subjects. Provisions arose out of the Bland decision and the 36 cases that followed.

Patrick McLoughlin: On a point of order, Mr. Deputy Speaker. The letter to the Lord Chancellor from the Archbishop of Cardiff states:
	"I am grateful to you for our conversations yesterday, for your letter this morning and our subsequent conversation."
	That letter should be in the public domain. We are asking for that and the Under-Secretary should make it available. He has made available a copy of the letter to the Lord Chancellor but what about the letter from the Lord Chancellor?

Mr. Deputy Speaker: It is clearly the Government's duty and that of Ministers to make available to the House all official Government papers that are necessary for the House to debate such serious matters properly and reach the right decisions.

David Lammy: We have continued discussions and tried to meet hon. Members' concerns and the archbishop has made his point and said—

Frank Field: On a point of order, Mr. Deputy Speaker. Do not you feel that there is an element of farce in the proceedings, given that we are insisting that advance directives should be clearly stated, understood and witnessed, yet we are about to vote on a crucial aspect of the Bill without seeing the documents?

Mr. Deputy Speaker: From the Chair, I am doing my best to make sense of the proceedings this afternoon. I have said more than once to the Under-Secretary that it is clear that all hon. Members believe that the precise—[Interruption.] Order. We are considering serious matters and people outside will not take kindly to our not being more orderly. The letter that hon. Members mention is clearly crucial; its precise terms are crucial. Hon. Members are entitled to expect—[Interruption.] Order. I hope that the Under-Secretary will deal precisely with the contents, which have now become central to the debate.

David Lammy: His Grace wrote:
	"I am grateful to you for our conversations yesterday, for your letter this morning and our subsequent conversation.
	My understanding now is that you are giving an undertaking to make explicit in the Mental Capacity Bill that the Bill does not authorise any 'decisions'"—

Several hon. Members: rose—

Mr. Deputy Speaker: Order. [Interruption.] Order. The House and the Minister must appreciate that when the occupant of the Chair stands, everyone else must resume their seats.

Iain Duncan Smith: On a point of order, Mr. Deputy Speaker. We are about to vote on the new clause. I suspect that the Government have circulated the archbishop's letter in the hope that many Labour Members will not vote. It is therefore critical that the Under-Secretary now reads into the record the undertakings that the Lord Chancellor has given to the archbishop. Surely the Under-Secretary must give a guarantee that the undertakings will form a substantive element of the Bill when it goes to the other place.

Mr. Deputy Speaker: That is not precisely a point of order for the Chair. [Interruption.] Order. Hon. Members who have participated in the debate will have now seen the letter's contents and the part that they have played in our discussions. It is up to all hon. Members to make up their minds about the whole position when they cast their votes.

William Cash: rose—

Mr. Deputy Speaker: Order. Time is running out. I shall not take any more points of order for the time being. I want the Under-Secretary to have the opportunity, in the few minutes that are left, to respond to the debate.

David Lammy: If I may finish reading the Archbishop's letter, I shall then read the Lord Chancellor's letter. The Archbishop's letter continues:
	"In the context 'decision' includes of course an act or omission, and extends to decisions made by proxies or others given powers by the Bill to decide whether or not a person is given life sustaining medical treatment. Any decision must be in a person's best interests.
	I greatly welcome this undertaking which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."
	The Lord Chancellor's letter to the Archbishop states:
	"Further to our conversations we agreed that neither of us want the Mental Capacity Bill to authorise any decision where the motive is to kill, as opposed to relieving or preventing suffering, or ending treatment where the patient is in an irreversible coma. Any decisions must be in the patient's best interests.
	I believe that this is clearly its effect, but we will seek to make it explicit in the Bill.
	As you made clear to me on the telephone, and in your briefing note, the Bland decision is unaffected by the Bill."
	We have sought not to affect the Bland decision and the 36 cases thereafter and we have had to continue dialogue for that reason. I am pleased that we have reached a form of words that enables us to table an amendment that will provide that, when a determination relates to life-sustaining treatment, the decision maker must not be motivated by the desire to bring about a person's death regardless of what is in that person's best interests. I am convinced that that fully covers the concerns that surround new clauses 1, 2 and 4.

Stephen Byers: I understand that the Lord Chancellor's letter does not state that "decision" includes acts or omissions. Will my hon. Friend confirm that it is the Government's intention, in line with Archbishop Smith's letter, that "decision" will include acts and omissions?

David Lammy: I can absolutely confirm that to my right hon. Friend. As I said, the dividing line between assisted suicide and acts of omission is the reason for the dialogue. We have ensured that our lawyers have worked together to achieve the outcome.

Ann Winterton: Will the Government include food and fluids, however delivered, in the definition of act of omission?

David Lammy: I have said that we engaged in that dialogue with Archbishop Peter Smith. The Bland decision defines artificial nutrition and hydration as medical treatment, as the hon. Lady knows. Nevertheless, we want to make it clear in the Bill that doctors cannot withdraw treatments against the best interests of an individual and that acts of omission would be contrary to the intention behind the measure. We have tried to do that.

Mike Hancock: Will the Minister explain why it was not possible to table a suitably worded amendment this afternoon, on which the Commons could have voted before the Bill goes to the House of Lords?

David Lammy: There have been ongoing discussions, and we are dealing with a decision by the House of Lords. Government lawyers have disagreed with the Catholic Church in particular about the effect of new clauses 1 and 2. We have now concluded that the decision must take as its starting point the assumption that it is in the person's best interests for life to continue. Those making the decision must not be motivated—as opposed to having the purpose—by the desire to bring about someone's death, regardless of what is in their best interests.

Jim Dobbin: This is very confusing for everybody. Despite the clarifications that the Minister has offered us, we are still confused. I accept what he said about omission, but will he make the position clear on the withdrawal of food and fluid, which is the essential point?

David Lammy: I must say from the Dispatch Box that we are not seeking to undermine Bland. That is precisely what Archbishop Peter Smith and Cardinal Cormac Murphy-O'Connor said—the Bill does not seek to undermine Bland. We want to ensure, however, that under the Bill it is not possible for someone by omission to act to assist suicide or euthanasia. That is the position that we have reached and that is the nature of the discussion that we have had today.
	It being half-past Three o'clock, Mr. Deputy Speaker, put the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—
	The House divided: Ayes 203, Noes 297.

Question accordingly negatived.

Patrick McLoughlin: On a point of order, Mr. Deputy Speaker. You were in the Chair during the closing stages of the debate when a letter from the Lord Chancellor became crucial to the House's deliberations. We were informed that the letter would be available in the Vote Office. It is still not available in the Vote Office; I have just been there to check. However, I did see people hand a copy of a letter, from a Box in the Chamber, to Government supporters and Government Whips. It was then passed along the lines. That letter is from the Lord Chancellor to Archbishop Peter Smith. It is dated 14 December. The letter back to him from Peter Smith is also dated 14 December.
	The point of order for you, Mr Deputy Speaker, is whether it is right that a document that became so crucial to the debate was made available only on the Labour Benches and was not made available in the Vote Office, as we were told it would be? Is that not a gross discourtesy to the whole House?

Mr. Deputy Speaker: Let me say to the hon. Gentleman and the whole House that it is crucial for us to conduct our affairs in the House in an orderly manner, not just for our own sakes in terms of debate and reaching the right decisions, but because people outside the House are watching our proceedings and are very concerned about the decisions that we reach.
	It is vital, too, that any document relating to and important to the debate that we are having should be before Members in all parts of the House before the debate starts. Officials are in the House to advise Ministers; they are not here in any way to distribute material that is not available to every Member of the House before the debate starts. I hope that Members in all parts of the House, particularly on the Government side, will have learned lessons from today's debate—which has not been organised as things ought to be organised here—and that this kind of thing will not happen again.

Andrew Turner: rose—

George Howarth: rose—

Mr. Deputy Speaker: Order. I will take no more points of order. I think we have dealt with the matter sufficiently for now.

George Howarth: On a point of order, Mr. Deputy Speaker. This may not strictly be a point of order, but it might be helpful to the House to know that my hon. Friend the Minister is content to accept my amendment—

Mr. Deputy Speaker: Order. The hon. Gentleman is clearly starting to develop his argument all over again. This is not a point of order for the Chair. I call Mr. Andrew Turner—but apparently he has decided not to pursue his point of order. What a blessing.
	Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

New Clause 2
	 — 
	Excluded decisions (No. 2)

'(1)   Nothing in this Act authorises the withdrawal of palliative care.
	(2)   "palliative care" includes the provision of—
	(a)   relief of pain, suffering and discomfort;
	(b)   nutrition and hydration, however provided.
	(3)   The provisions of subsection (1) do not apply to—
	(a)   a decision that nutrition and hydration is to be discontinued because it would be unreasonably burdensome to the person; or
	(b)   the power of the court to make such order concerning the continuance of life sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.—[Ann Winterton.]
	Brought up, and read the First time.
	Question put, That the clause be read a Second time:—
	The House divided: Ayes 198, Noes 296.

Question accordingly negatived.

New Clause 3
	 — 
	Non-therapeutic procedures

'The Secretary of State may by order applying either generally or in cases of a specified description authorise the carrying out of any medical or surgical procedure in relation to a person without capacity to consent which, although not carried out for his benefit, will in the opinion of the Secretary of State not cause him significant harm and be of significant benefit to others.'.— [Mr. Barron]
	Brought up, and read the First time.

Kevin Barron: I beg to move, That the clause be read a Second time.

Madam Deputy Speaker: With this it will be convenient to take the following: Government amendment No. 7.
	Amendment No. 43, in page 17, line 24, at end insert—
	'(c)   be in the best interests of P.'.
	Government amendment Nos. 8 and 9.
	Amendment No. 44, in page 18, line 18, leave out 'or is P's deputy.'.
	Government amendments Nos. 10 to 14.

Kevin Barron: The House will be pleased to hear that I have not written to the Lord Chancellor or any bishops about this new clause. Hon. Members who served on the Standing Committee will be familiar with the arguments that I am about to make in respect of research. I remind my hon. Friend the Minister that she said in Committee:
	"My right hon. Friend was right to raise the point of needlestick injury, and it is important that we look at that. Some of that is covered by clauses 4, 5 and 6, and some of it may cross over with the Human Tissue Bill."—[Official Report, Standing Committee A, 2 November 2004; c. 279.]
	I shall be interested to hear her response to what I have to say this afternoon.
	The provision to include non-therapeutic procedures that will benefit other third parties was originally included in the 1995 report into mental incapacity by the Law Commission. The report said that an order made by the Secretary of State should stipulate whether a procedure required the prior approval of the court or, alternatively, a certificate from an independent medical practitioner. I understand that the Bill aims to protect the interests of the individual, especially when that person lacks the capacity to take decisions. New clause 3 has been proposed because of the worry in the medical profession that the Bill may inhibit those factors that contribute towards looking after the interests of health professionals.
	The Bill does not tackle the question of minimally invasive interventions that are not directly in the best interests of the incapacitated person but which are not harmful and which provide a significant benefit for third parties. The British Medical Association has brought to my attention two examples of that. Although I have no direct connection with the BMA, I remind the House that I am a lay member of the General Medical Council. As a result, other associations in the UK occasionally talk to me about matters such as this.
	The BMA is worried about testing health professionals for blood-borne diseases after they have suffered a needlestick injury when there are good reasons to think that the patient involved might have a condition such as HIV, for which prophylactic treatment is available. As the Bill is drafted, it would be illegal to take a blood sample for testing in circumstances where an individual is unconscious and unlikely to regain consciousness in the short term. A doctor who has received a needlestick injury cannot make an informed decision about ongoing treatment if a test cannot be undertaken to determine the patient's infection status. With my GMC hat on, the GMC's guidance to the profession on that issue, entitled "Serious Communicable Diseases", makes it clear that taking a blood sample for testing in such circumstances may leave a doctor open to criminal charges and that testing an existing sample without consent may also be challenged in the courts or before the GMC under its fitness to practise procedures.
	The medical profession is worried about exactly how the Bill will affect doctors. The BMA has said that it would like the Bill to address the issue and allow doctors to take steps to protect their health and that of other professionals when such incidents occur.The BMA is pleased to note that provision is to be made in the Human Tissue Bill for regulations to allow genetic testing of a sample from an incapacitated adult for limited purposes other than their personal medical benefit. Clearly, in some circumstances information obtained from DNA analysis would be of huge benefit to other family members, and the BMA hopes that those circumstances will be covered by regulation. However, the BMA is concerned that this Bill makes no provision for samples to be taken for that purpose. It is not clear that taking blood for genetic testing for the benefit of a relative will satisfy the best interest test as a matter of law. In discussing the issue, the Human Genetics Commission said that
	"the position of the adult without capacity remains unsatisfactory. The lack of any specific legal authority means that whether or not such an intervention is lawful remains open to doubt."
	The BMA would like the issue to be clarified in the Bill.
	When I raised the issue in Committee, my hon. Friend the Minister said that she would look at it, and I hope that she will say something further about it this afternoon. I know that individuals and organisations have wanted this legislation for more than a decade. Indeed, I support the Bill and the need to protect people who lack capacity when it comes to medical research. However, when a health professional has been put into a difficult situation, to say the least, after an accident, they would not be able to demand that a sample be taken on their behalf.

William Cash: As a lay member of the GMC, the right hon. Gentleman will know that considerable concern was expressed in a report published only two days ago about the manner in which it carries out its functions. The matters that he raises could clearly give rise to questions of disciplinary action and procedures. Can he give us an assurance that the GMC will consider those issues in the course of applying the remedies required to put its procedures on to a proper footing?

Kevin Barron: There are some issues in the fifth report of the Shipman inquiry to which I take exception. In my five years on the GMC, I sat on fitness to practise committees for three years and I did not conclude that the GMC was soft on doctors. Nor was it the case that lay members felt differently about cases from the medical members of the committee. I hope that we will return to that issue in the future and I know that my hon. Friend the Minister will have discussions with the GMC about the implications of Dame Janet Smith's report. I would just say that in the past five years the GMC has had referred to it some 700 doctors, 500 of whom had findings against them on various levels of the fitness to practise procedures and 200 of whom were struck from the register. Those statistics do not suggest to me that the GMC is soft on doctors, so I dispute that point. Indeed, in its favour, Dame Janet did not say that the council had done anything wrong in 1976 when it was acting in the case of Dr. Harold Shipman. That was a bit before my time on the GMC—indeed, it was a bit before my time in the House.

Patsy Calton: Will the right hon. Gentleman give way?

Kevin Barron: I shall give way, but I do not want to be distracted from the clauses.

Patsy Calton: rose—

Madam Deputy Speaker: Order. The right hon. Gentleman was reading my mind. We are actually debating new clause 3, so a brief reference was all I was hoping for. Is the hon. Lady's intervention on a different point?

Patsy Calton: It is on a completely different point, Madam Deputy Speaker.
	I am considerably worried about the scope that the new clause could give. Although I fully understand that the right hon. Member for Rother Valley (Mr. Barron) is talking about relatively trivial procedures, such as taking a blood sample for HIV or DNA testing, does he agree that authorising any medical or surgical procedure on a person could give scope for considerably more than that? It might involve drug testing or all sorts of things that would not, in any sense, be in the best interests of the person concerned.

Kevin Barron: I do not disagree; it would depend on the circumstances. The problem that I am raising is one that concerns health professionals. There are four clauses on research and several Government amendments in the group and I should like us to get on to them. The provisions, rightly, are for the protection of people in particular circumstances, but questions arise about those working with them and about incidents such as the one I described earlier. What would be done to protect the interests of health professionals such as doctors, nurses or others working in close proximity to the patient?

Dominic Grieve: I appreciate that the new clause was presented to the right hon. Gentleman by medical bodies, and it is necessary for us to debate it, but have those bodies taken adequate legal advice? The test in the right hon. Gentleman's illustration—the need to carry out a blood test so as to provide, for instance, the right conditions in which to nurse a patient—would always be in the patient's interests; indeed, such tests would be directly related to their care, because without them adequate nursing care could not be provided. The medical bodies may be worrying about nothing on that point.

Kevin Barron: I do not disagree. If someone is suffering from HIV, it is in their interests to know about it, but there may be circumstances—for whatever reason—when permissions cannot be given by the individual, certainly if they lack capacity. Apart from that, the victim of a road accident, for example, would not have been able to give pre-permission and, due to the accident, would be unable to give any form of permission at the time.
	The Bill has been drawn up to protect the interests of the patient and I completely agree that that should be so. However, we need to probe—and the purpose of the new clause is to probe exactly what is likely to happen when such situations arise. We have just had a long debate about clinicians' decisions and there were questions about what would be within the law or what professional advisers or regulatory bodies would think. The new clause is useful because Ministers will be able to consider it and tell us what they feel about the situation.   I support the clauses on research and do not want to amend them in any way. All research plans will be checked by independent experts through research ethics committees. That is important to ensure that research on people who lack capacity is safe, relates only to that person's condition and could not be carried out on a person who has capacity. That will apply in many cases, but I should like to know Ministers' thinking about the circumstances where it does not apply.

John Butterfill: I am very concerned about new clause 3, which seems to open very widely a range of procedures that may not be of the sort described by the right hon. Member for Rother Valley (Mr. Barron) in moving the motion. For example, I am not sure whether carrying out blood tests on patients incapable of giving consent could be in their interests, although it might be necessary to carry out a blood test in any event to discover what is wrong with someone and that probably would be justified. I am worried about the extremely wide scope of the new clause, the huge discretion that it gives to the Secretary of State and the lack of any independent adjudication on the appropriateness of such actions.
	May I just recount what happened to my mother? When she was in her late 70s, she was dying of cancer. She went to the Salisbury hospital, where she had an exploratory operation—[Interruption.]

Madam Deputy Speaker: Order. An electronic instrument is playing a musical tune. Will the person involved please ensure that it is switched off?

John Butterfill: As a result of that operation, it was discovered that my mother had advanced cancer of the pancreas. When I spoke to the surgeon afterwards and asked, "Well, what's the prospect?" he said, "Well, she's absolutely riddled with it. All I've done is sew her up, and all we can do is make her comfortable for the few months that she has got left to live." I said, "Do we tell her?" and he said, "Well, if she asks directly, yes, but a lot of patients don't want to know, so unless she asks me or asks you, we probably won't tell her the situation."
	My mother then came to live with my family in the final months of her condition because she needed fairly constant nursing, but it came to a stage where it was not possible for her to stay in the home and she went into the Royal Surrey county hospital, Guildford. We went to visit her one day and she said, "Oh, wonderful news: they're going to operate on me, and they think that they can possibly cure it; they think that they know what it might be." I said, "Oh, wonderful, mum. Yes, good; I'm jolly pleased." I then contacted the surgeon concerned and asked, "What's going on? You know perfectly well that she's in a terminal condition. We have been told already that she can't be cured. What are you doing this for?"
	As it was a teaching hospital, I said, "Is this just to open up an old lady, so that students can see what a terminal pancreatic cancer condition looks like?" and the surgeon had to admit that it was. I asked, "Will it in any way benefit or advance the cause of medical science?" and the response was "Probably not." I said, "I shall report you to the GMC if you go ahead with this." The operation was not proceeded with and the staff said, "Well, how are we going to tell her?" I said, "Well, that's your problem. You've raised her expectations, and you'll have to deal with deflating them." I say that purely to illustrate the attitude of some members of the medical profession to the way that they interpret what they may or may not do.
	What worries me about the new clause is not the sort of minor procedures that the right hon. Member for Rother Valley proposes, but the huge breadth of authorisations that may be included by the phrase
	"any medical or surgical procedure in relation to any person without capacity to consent which, although not carried out for his benefit, will in the opinion of the Secretary of State not cause him significant harm and be of significant benefit to others."
	That is extraordinarily broad. No checks and balances are built into the new clause, and it is not sustainable. That is where the Nazis were with Dr. Mengele. I am not suggesting that any of our Secretaries of State is ever likely to act in that way, but the new clause is far too broad, and it could not possibly be accepted without proper checks and balances being built into it.

Angela Browning: When the Joint Committee considered this part of the Bill, I expressed quite a few reservations about the principle of carrying out research on people who lacked capacity. We have had a long debate this afternoon about advance decisions. Of course, if someone who has capacity, but knows that they have a condition which means that they will eventually lose it, gives their full consent while they are compos mentis to some research being carried out on them, that is a different matter. However, like my hon. Friend the Member for Bournemouth, West (Sir John Butterfill), I share concern about the scope of the new clause.
	One of the concerns of the Scrutiny Committee, which was accepted by the Government, was that the principles of the Bill should be clearly stated at its beginning. The fifth principle is that
	"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
	I am not sure that the new clause complies with that important principle.

Tim Boswell: Does my hon. Friend believe that clause 1(5), let alone the new clause tabled by the right hon. Member for Rother Valley (Mr. Barron), represents an adequate exposition of the best interests principle?

Angela Browning: I have expressed my reservations about it. We were lobbied both in the Joint Committee and the Standing Committee by organisations, some of which I am personally associated with. I am sure that where there is a lack of research into certain medical conditions we all want to give as much opportunity as possible for research, but in the back of my mind I have a nagging problem about research being done on people who lack capacity, not for their own benefit but for the wider good of others, without their specific consent in an advance directive.
	New clause 3 is extremely wide in scope. It says that the research should not cause the patient significant harm and should be of significant benefit to others.

Dominic Grieve: That must mean, must it not, that it can cause the patient some harm?

Angela Browning: Indeed. My hon. Friend has, as always, identified the nuances in the choice of language. What is significant harm and what are degrees of significant harm that would be acceptable for someone who lacks capacity? Would exactly the same things apply to someone who had capacity?
	I have an interest in the matter in another context that is appropriate to the points made by the right hon. Member for Rother Valley (Mr. Barron). I worked with the Government a couple of years ago to persuade them to change a Home Office Bill in respect of the perpetrators of road traffic accidents who were suspected of drink-driving but who went into a casualty department unconscious—without capacity. The police had difficulty obtaining a blood sample from an unconscious perpetrator of an accident. It took three years, but we got there in the end and the legislation was amended. It was decided that a police surgeon, with the permission of the casualty admitting doctor, could take a sample under all the necessary constraints. When the person gained capacity, they had the right to say whether the blood sample could be used. The new clause would apply to many people who would never regain capacity and would not be able to exercise their right to make decisions.
	The right hon. Member for Rother Valley gave the example of a patient with a disease or condition that might be of harm to others, including the medical practitioners looking after them. I am not convinced that procedures do not already exist to allow the medical profession to address specific concerns about spreading disease and contaminating others, including those working with patients.
	The Bill is an inappropriate vehicle for such requirements on research. New clause 3 would represent a movement away from the Bill's best principles, so I must tell the right hon. Member for Rother Valley that I cannot support it.

William Cash: I had not intended to speak about new clause 3, but the more I read it, the more worried I become. Given the position of the right hon. Member for Rother Valley (Mr. Barron), I take it that he is proposing a measure that has been approved by the General Medical Council. [Interruption.] I am glad to know that that is not the case. New clause 3 is well drafted for the purpose for which it seems to be intended, so I wonder what its origins are.

Kevin Barron: The provision came to me through the British Medical Association, not the General Medical Council.

William Cash: That reinforces my worry in many respects because the BMA is of course the trade union for the medical profession. Although I have already indicated the necessity to improve the GMC's procedures so that its self-regulatory processes work effectively within a statutory framework—many people, including Dame Janet Smith, who sat in judgment during the recent inquiry, clearly remain deeply concerned about that—the points that I am about to make must be carefully considered by the BMA. If we do not reach a conclusion today, I sincerely hope that another place will bear my points in mind.
	As I said on a point of order about the shambles of the debate on new clauses 1 and 2, the House must be given adequate time after the Bill has returned from the House of Lords to consider such matters properly. We should not be constrained by an artificial programme motion that does not give us the time to do so. We should consider amendments for a full time on behalf of our electors, who are the reason why we are in the House. The shambles that we saw indicates—

Madam Deputy Speaker: Order. Will the hon. Gentleman direct his remarks to new clause 3 rather than what took place previously?

William Cash: I hear what you say, Madam Deputy Speaker, and I shall abide by the generality of it. However, my point also relates to new clause 3. If we are to have a proper debate about the matter, I trust that we will also be able to consider it when the Bill returns from the House of Lords.
	The Secretary of State would invoke a power by order to carry out the injunctions set out in new clause 3, so the rest of the Bill's provisions on statutory instruments would be applied. I am worried that the power would be incredibly wide because it could be used
	"generally or in cases of a specified description".
	It would thus apply to almost any circumstances that could be conceived.
	The Secretary of State could, by such an order,
	"authorise the carrying out of any"—
	not some—
	"medical or surgical procedure".
	That could include virtually anything that a doctor, consultant or similarly qualified person could do. Such a procedure might be not merely specific to, but in relation to, a person. That raises the question of who is a person. Does it mean, for example, an unborn child? The amendment describes the person as being "without capacity to consent". Of course an unborn child does not have capacity to consent. Of course, in certain circumstances, a person in severe medical trauma does not have capacity to consent. We covered that in the previous debate.
	The amendment goes on to qualify the procedure as
	"although not carried out for his benefit".
	What may or may not be for the person's benefit certainly would not include abortion.

Angela Browning: Has my hon. Friend considered whether sterilisation would fall within the scope of the amendment? I can think of circumstances where someone might lack capacity and have a hereditary disease, and in case they ever became pregnant or made someone pregnant, it might be deemed better for them to be sterilised for the benefit of any children that might otherwise be born in the future?

William Cash: Indeed. I should be grateful if the right hon. Member for Rother Valley could tell me what would not be included under the provisions of the new clause. On my reading of it, there is virtually nothing that would not be included.
	The new clause continues with the words
	"will in the opinion of the Secretary of State".
	The words "in the opinion of" mean in law that, for practical purposes, there is no means of challenging the basis upon which the Secretary of State arrives at that conclusion. The new clause states that the procedure
	"will in the opinion of the Secretary of State not cause him"—
	that is, the person without capacity to consent—
	"significant harm and be of significant benefit to others."
	If that is presumed to mean that although not carried out for his benefit, the procedure could not cause him significant harm, and that that is intended to deal with the question of abortion, and to be of significant benefit to others, I would certainly take account of what the right hon. Gentleman says.
	New clause 3 is enormously wide. I cannot see much that would be excluded from it. I would be happy to hear that it is not intended to apply to abortion, among other things. In the light of what is contained in the Bill, I am rather concerned about what will happen once these issues have been taken out of the arena of the common law and the conventions and ethics of the medical profession, and transformed through statute and codes of practice into legal rules, which are enforceable and would need to be adjudicated. I am worried that there may be an attempt, driven by the profession and/or by insurers, to make sure that the buck is passed, making doctors and others in the medical profession less accountable than they are at present.
	There is an important question lurking in the back of my mind about all these matters. This is not intended as a criticism of a noble profession and the wonderful doctors, surgeons, consultants and so on, whom we know and trust. However, in the course of proceedings on the Bill, I detect a growing tendency that there is meant to be a change in the manner in which decisions will be adjudicated, just as, for example, we in the House have to form judgments on a daily basis about what we believe to be in the interests of our constituents. That is the duty that we have to discharge. Sometimes it is extremely difficult—in certain respects, it is difficult in the context of this Bill—particularly when conscience matters arise.
	My final thought is that just as it is intrinsic to our duties to arrive at difficult decisions on our own responsibility, which is one of the reasons why our deliberations are not constrained as if this House were a court of law, so the ultimate responsibility and accountability of doctors and others in those professions depends upon their judgment of what is or is not in the interests of their patients, which is a matter of the highest faith and duty.
	My hon. Friends the Members for Bournemouth, West (Sir John Butterfill) and for Tiverton and Honiton (Mrs. Browning) have referred to specific examples of clauses that depend on expressions such as "in the opinion of", and other examples include a case to which I shall return later in the debate. It is essential that we do not end up with broad-brush clauses, which I am sure are well-intentioned—I hope that they are well-intentioned—but carry grave problems of the kind that I have attempted to describe this afternoon.

David Heath: I shall be brief. The right hon. Member for Rother Valley (Mr. Barron) may have detected the lukewarm response to his new clause. We should not decry his intention, but he has not been sufficiently clear on the arguments why the patient's best interests should be set aside in such a wide range of circumstances.
	I shall not repeat points made by other hon. Members. I understand the right hon. Gentleman's point about diagnostic blood testing, but that case is already covered by the protection for the medical practitioner against any charge of assault or more serious harm. That is a clear example in which the interests of the individual are identical to the interests of the class—in diagnostic terms—of patients. For instance, it is not in an individual's interests to be barrier nursed as a precautionary measure simply because nobody knows whether they have a blood infection. It is possible to construct an argument in law on that basis, and if difficulties arise, we need a specific measure to deal with them.
	In my view—I do not want to labour the point—new clause 3 covers an enormous width of provision by referring to any medical or surgical procedure. Hon. Members have discussed sterilisation, which clearly falls within those parameters. I venture to suggest that the point raised by my hon. Friend the Member for Cheadle (Mrs. Calton) on testing drugs would also fall within those parameters.
	On transplant procedures, it would not cause a patient significant harm to lose one kidney, which happens all the time in familial relationships where that is the best match. Under new clause 3, could the Secretary of State require that a person should be operated on to remove a kidney for donation to another individual? It would certainly be of significant benefit to another person, but it would not cause the individual significant harm. No Secretary of State would make that assessment, but new clause 3 contains a width of provision that the House would be unwise to allow. The question has been put, "What possible procedures would not be included in that definition?" All I can think of are cosmetic surgical procedures, and even they could be said to be for the benefit of others. I hope that the right hon. Gentleman will not in any way resile from his intention but will realise that the new clause is wrongly drafted.
	I want to raise one other issue in relation to Government amendment No. 7, although we have yet to hear the arguments for it and I do not wish to pre-empt them. It inserts into clause 31(2) the words,
	"or causes or contributes to",
	which means that the subsection will read:
	"The research must be connected with a condition which—
	(a)   affects P, and
	(b)   is attributable to",
	or causes or contributes to,
	"the impairment of, or disturbance in the functioning of, the mind or brain."
	I entirely understand why the Government wish to add those words—clearly, there are conditions that are caused by damage rather than being the cause of damage, and both should be included. The difficulty lies in the fact that the subsection deals with both mind and brain. When something affects the brain as an organ, there is clear cause and effect, but if mind is included, anything that causes or contributes to mental trauma could fall within the scope of the provision.
	That may not have been taken into account in the drafting procedure. I think that the drafters were trying to put right a lacuna in the existing wording, but by not recognising the difference between mind and brain they may accidentally have produced a rather wider sense to the subsection than they intended. I would welcome the Minister's comments on that specific point.

Dominic Grieve: The amendment tabled by the right hon. Member for Rother Valley (Mr. Barron) seeks to widen enormously the scope of the research clauses. On Second Reading, I said that those clauses were some of the most troublesome that the House had to consider. I appreciate that in the past, matters concerning research on an incapacitated patient who does not have the mental capacity to give consent have been conducted informally by the medical profession, usually with the consent of relatives. Nevertheless, there is something very stark about what happens when one reduces those informal procedures, which in my view were wrong, into a statutory form that, to my mind, remains ethically extremely troublesome.
	The right hon. Gentleman has in a sense taken an extreme position—I hope that he does not mind my saying that, as it is right that he has done so—by putting forward the medical profession's view, which is essentially that if doctors think that an action is justified, and as long as it does not cause significant harm to an incapacitated person, they should be able to do it, with the Secretary of State being able to provide particular authorisations. I have to say that it is apparent that such a procedure would be in flagrant breach—I hope that the right hon. Gentleman does not mind my using that expression—of the provisions of the Council of Europe convention on human rights and biomedicine, which lays down strict guidelines on what is permissible in relation to an incapacitated patient: guidelines that the Government have not followed in their drafting of the Bill.
	I hope that the right hon. Gentleman will excuse me when I say that I could not under any circumstances support new clause 3, and I certainly could not encourage any of my hon. Friends—notwithstanding that this is a matter for a free vote—to do likewise.
	As I said in my intervention on the right hon. Gentleman, some of the anxieties that he expressed, especially about barrier nursing or conducting tests to determine the best way in which to handle a patient, are groundless. Even if the most rigorous research clauses were introduced, I do not believe that doctors or nurses should have any anxiety about the sort of test that exists for their safety when relating to patients—that is plainly in the patient's interest—or for deciding the best way in which to manage a patient. I hope that he can pass that reassurance back to those in the medical profession.
	Let me deal with the clause more generally. The clauses on research differ substantially from the European convention. The differences have been highlighted by the Joint Committee on Human Rights, which scrutinises Bills. It stated that, unless the wording is tightened up, there is a serious risk that the provisions will be found to be in breach of the convention. A Government response to that is awaited and I hope that, at this late stage of the Bill's passage through the House of Commons, the Minister will give some idea of the Government's view of those criticisms.
	Let me consider amendments Nos. 43 and 44, which my hon. Friend the Member for Daventry (Mr. Boswell) and I tabled. I continue to have serious anxieties about the research clauses. There is an argument, which, doubtless, many people would try to avoid, that research can never be justified on an incapacitated patient unless one can show that it is directly for that patient's benefit. The fact that the research may be for the benefit of a wider section of society is arguably irrelevant. After all, if I am a person of full capacity and a doctor asks me whether I would be prepared to consent to tests, albeit not massively intrusive tests, which are not for my direct benefit but might benefit thousands of other people, as the law in this country currently stands—thank goodness—it is my right to say no. The idea that, if I were incapacitated, someone could make the decision for me is troubling.
	The logical outcome of the argument is that all sorts of medical research may be closed off. The alternative approach is that the Government should simply rewrite the clauses and provide that people have to sign up in advance, as they do for organ donation, and state that they are prepared for such tests to be undertaken. It is a difficult issue but the approach in the Bill leaves me feeling uncomfortable.
	In an effort to tackle that, my hon. Friend the Member for Daventry and I tabled amendment No. 43 to clause 31(4), which states:
	"The research must—
	(a)   have the potential to benefit P without imposing on P a burden that is disproportionate to the benefit to P, or"—
	the controversial paragraph—
	"(b) be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition."
	Paragraph (b) is the cause of my concerns. Amendment No. 43 would add a paragraph (c), which would provide that the research must
	"be in the best interests of P."
	Elsewhere in the Bill, "best interests" has been presented repeatedly as the major justification for allowing decisions to be made about a mentally incapacitated person. Why cannot that specifically be included in clause 31? I believe that I know what the Minister's answer is likely to be. It will or might seriously restrict the circumstances in which any testing or treatment could be undertaken. If that is the case, it may be necessary for hon. Members simply to accept it.
	I remain troubled by a principle that allows experiments to be carried out on individuals to whom they are of no direct benefit. Our proposed subsection, on which I hope we will have an opportunity to vote, would provide extra protection.
	The second amendment that I have tabled with my hon. Friend the Member for Daventry would amend clause 32(6), which deals with the consultation of carers. We seek to delete the reference to "P's deputy", because a deputy is not a suitable person to make that decision, and does not have the status or standing to do so. The Government have tabled amendments that attempt to take on board some of the anxieties and criticisms about the research clauses in the Bill. I note with satisfaction that the potential for going to court to circumvent the advice of close relatives has effectively been removed except in emergencies. I am very pleased indeed about that. The Minister will be aware of the contents of the report by the Joint Committee. At the moment, the wording of the relevant clauses does not correspond with that of Council of Europe convention so, as the Joint Committee highlighted, the Bill does not comply with the convention on human rights and biomedicine. We therefore need reassurance from the Government about how they will address the Joint Committee's concerns. If the Minister cannot do so this afternoon, I hope that she will send hon. Members and me a full response to the criticisms that have been made.
	Returning to my main point, we may all think that research to prevent diseases and affliction in others is desirable, but we should be careful about using the incapacitated as our guinea pigs to achieve that outcome. I accept that this is a difficult ethical area, and in many cases it may be possible to find a way around it. The Bill institutionalises what has previously been done on the nod, but that does not mean that we should simply allow past procedures to continue, even if that is inconvenient. I hope that the Minister will respond positively to my proposals, because amendment No. 43 goes a long way towards ensuring that patients will not be subject to experimentation, however benign, that is of no benefit to them at all.

Rosie Winterton: I shall start by addressing the new clause tabled by my right hon. Friend the Member for Rother Valley (Mr. Barron). I have taken careful note of the points that he and the British Medical Association made, and the issue deserves serious consideration. I am sympathetic to the fact that doctors are often put in a difficult position when faced with the need for such testing. However, as other hon. Members have said, we have made the principle of best interest the cornerstone of the Bill, and I am afraid that it would be extremely difficult to accept a provision allowing P to be tested for a purpose that is not in his best interests. The BMA, understandably, has sought assurances that it would be possible to conduct a diagnostic test primarily of benefit to a family member in the case of genetic diseases, or perhaps to a nurse or doctor if a needlestick accident had occurred in P's treatment. That is the issue about which my right hon. Friend is particularly concerned, but I hope I can give him some reassurance here.
	As I have said, it would be difficult to imagine a situation, for example, where someone with capacity—if there had been a needlestick injury in particular—could say that they did not want any such test carrying out. We would then have a different scenario for people without capacity. That is the difficulty in what are obviously difficult situations in themselves.
	We believe that a proposal such as that tabled by my right hon. Friend is unnecessary, because the Bill will allow for acts whose primary purpose is to benefit a third party, provided that those acts are in P's best interests. I reassure the House that the interpretation of best interests could be broader than P's medical best interests. I can confirm that the Bill will not prevent a genetic test for a familial cancer, for example, that might not be essential to P's medical care but would provide considerable benefit to some other family member.
	Similarly, HIV testing would be lawful if there were a needlestick injury to a nurse involved in P's care and if a timely diagnosis of HIV status would be in P's best interests, so that treatment could be started. There is the ability for a medical professional in those circumstances—if they reasonably think that a person might have HIV/AIDS or hepatitis C and that they might have been affected by it—to request a test so that treatment of P could start.

Angela Browning: Would not the scenario that the Minister has outlined equally apply to somebody with capacity? For example, there might be a patient in hospital who has capacity, but who perhaps lived a lifestyle that gives cause for concern that they might be carrying HIV. So, in that circumstance, there would be equal treatment between those with and without capacity.

Rosie Winterton: Obviously, if someone had capacity, there would be the ability to ask them whether they consented to such a test. The consent rule would still apply there. There is, in a sense, a slight difference here; if someone cannot give consent because they are incapacitated, there have to be other ways in which the approach could be made.

David Heath: I am slightly concerned by the Minister's linkage between the investigation and the efficacy of treatment. It seems to me that there are plenty of other reasons, which are for the general benefit of the patient, for that diagnosis to take place. However, to link it too expressly with an effective start—an early start—to a therapy is unhelpful to the argument. I hope it is not an exclusive argument that she is making.

Rosie Winterton: I am simply saying that, in circumstances where it is impossible to know whether the incapacitated person might or might not be suffering from such a condition, if there is reasonable cause to think that they might be, it would be in their interest, and of benefit to them, to have a test so as to start treatment. Someone who has capacity, however, obviously still has the ability to refuse to be tested. If they are asked, however, and they refuse to be tested, it is extremely difficult to force them.

Dominic Grieve: In the case of an incapacitated patient, there is an entitlement to presuppose that in relation to treatment for their own benefit, they would act as a reasonable patient with capacity would. That is what large chunks of the Bill are all about. As long as a direct benefit to the patient can be shown, the problem raised by the right hon. Member for Rother Valley (Mr. Barron) does not arise, and he need not be troubled by it. The problem, which is at the heart of these clauses, comes when research is not at all for the benefit of that patient or his immediate management.

Rosie Winterton: Perhaps I can address some of those issues shortly. I want to reassure my right hon. Friend the Member for Rother Valley that we will make it clear in the code that, in such cases, the possible wider benefit that accrues from testing, which has been endorsed already in legal judgments, will continue to be an important factor in determining best interests. If a diagnostic test is in P's best interests, it should be lawful, and doctors performing such tests have the protection from liability afforded by clause 5. We will also consult on a role for the independent consultee in such decisions, so that there are mechanisms other than the Court of Protection to ensure that P's best interests are met in the light of the specific circumstances of each case. In the light of the explanations and, I hope, reassurance that I have given, I therefore ask my right hon. Friend to withdraw his amendment.
	With regard to amendment No. 43, I agree that it is important that we make sure that people without capacity are properly protected. That is why we have included in the Bill some stringent safeguards. It is more difficult to define best interests in this area than in other parts of the Bill. The most that we can ask of research is that it offers a potential benefit to people. There cannot be guarantees, because, as was pointed out in Committee, if there were, such treatment would be offered. There is no way that researchers can prove in advance that something will be of benefit; they can only say that it may be of direct benefit. Were we to undermine that and say that it had to be of benefit, a lot of research would not take place, and some research being done would have to cease.

Dominic Grieve: What, then, is the ethical basis for the research clauses as they stand? That is not a trick question for the Minister; it is a fundamental issue. The Government must explain to the House the ethical basis of carrying out experimentation or testing on someone who is incapacitated, cannot give consent and has no direct benefit from such tests.

Rosie Winterton: Let us be clear; we are talking about potential benefit. As to the ethical basis, however, we must agree about whether or not we want to carry out research on the conditions, or the causes of the conditions, of people with incapacity. The safeguards put into the Bill make it clear that such research will only be that which cannot be carried out on someone with capacity; that relates to the causes or conditions of the person's incapacity; that the person has the absolute right to withdraw at any time from such research if there is any indication that they do not want to be involved in it; and that if somebody else objects to their inclusion in such research, they should be withdrawn from it. It must be approved by a research ethics committee, which will also look at the way in which consent has been obtained.
	The Joint Committee gave careful consideration to the issue. It decided that, on balance, despite concerns about research of this kind, it was not right for people who had incapacity not to benefit from the research in the same way as those with capacity. A number of groups made representations to the Government, and I am sure the hon. Member for Tiverton and Honiton (Mrs. Browning) will agree that they were made to members of the Committee. Those groups told us that excluding people without capacity from research would be detrimental to them.
	As I have said, it is always difficult to prove that something can be in someone's best interests. We can only say that it is of potential benefit to that person, or might benefit him or her in the longer term, or might benefit him or her indirectly once more research has been done, or might benefit others with the same condition now or in the future.

Dominic Grieve: It is that last point that bothers me. The others do not trouble me all that much. Even potential benefit might be a justification, but the nub of the issue is research carried out on an individual that is of no possible benefit to that individual, but is justified on the ground that it is there for the wider public good. Are the Government comfortable with that set of ethical values?

Rosie Winterton: I am very comfortable that we are introducing a number of safeguards in the Bill. As the hon. Gentleman has said, research already can be carried out, but now safeguards will be introduced. I am confident that, as far as possible, medical ethics committees will ensure that research benefits individuals at the time. It may not always be possible for some research, particularly when it looks into causes, to be of direct benefit immediately, but it could well be in the future. It might also lead to alleviation of current symptoms.

Tim Boswell: This is a difficult argument, but I think that the principle is simple. Clause 1(5) makes a commitment that embraces the whole Bill—that acts done or decisions made should be in the best interests of the person involved. Is the Minister saying that that best-interests principle is suspended in the case of the research clauses? Yes or no?

Rosie Winterton: I am not saying that it is suspended, but I think that given the direct way in which it is interpreted in other parts of the Bill, it will be inevitably interpreted slightly differently in this part, for the simple reason that it is always extremely difficult to say that research is absolutely in someone's best interests. It is in the nature of research that it is almost impossible to prove that it would be of direct benefit.

William Cash: Would it not be possible to overcome some of the difficulty by making it clear in the principles that the provision would apply when it was of direct benefit to the person concerned, but not when it was of indirect benefit?

Rosie Winterton: As I have said, although one would hope that such research would be of direct benefit, it is not possible in every circumstance to prove that it would be. The Bill's provisions are absolutely consistent with all international legal and ethical norms and instruments. The Bill also makes it clear that if the research is for the benefit of others, the risk must be obviously negligible.

Angela Browning: Will the Minister give way?

Rosie Winterton: I will, but I am anxious to move on and I know that the hon. Lady will want to discuss the independent consultee.

Angela Browning: I thank the Minister and I shall be brief. Incapacity usually has a neurological base, and the benefit of research into conditions such dementia and Alzheimer's often lies in post-mortem pathology, rather than in research on living people. So I hope that the Minister will focus on such opportunities, rather than on performing research on people who are still alive.

Rosie Winterton: The hon. Lady is of course right. Some of these issues are covered in the Human Tissue Act 2004, so that we can be clear that such research can be carried out, with the proper consent.
	As I was saying, the difficulty is that it would be extremely difficult to ensure on every occasion that such research was in the best interests of P, so in effect, such a provision would prevent a great deal of research.
	Amendment No. 44 deals with an issue that was raised in Committee. I understand and share Members' desire to protect someone who may lack capacity from decisions taken by a court-appointed deputy whom they did not choose to represent them. However, the problem is that such a deputy might well know and be related to P; in effect the amendment would exclude a number of people who might be in the best position to know whether P would have wished to participate in such research. The court might well appoint a relative, friend or carer as the deputy, and we would not want to exclude such a person. However, I sympathise with the concerns expressed and we will amend the code of practice to make it clear that if a deputy has no relationship to, or knowledge of, P before their appointment, they should not be consulted on the question of P's participation in research. I hope that that deals with the concerns expressed.
	I shall deal briefly with the Government amendments. Some very useful suggestions were made in Committee and I agreed to look into them. We have tabled a number of amendments that draw on policy intention behind the various clauses. As drafted, clause 31 unintentionally prevented research into a condition or illness that causes incapacity, such as variant Creutzfeldt-Jakob disease or Alzheimer's, even where such research might be of benefit to P. As per our original intention, Government amendment No. 7 will allow research into anything that causes or contributes to P's condition, as well as anything attributable to it.
	Government amendments Nos. 8, 9 and 10 deal with removing a researcher's right of appeal. As was pointed out in Committee, as drafted clause 32 would give a researcher the right to apply to a court if a carer, friend or relative objected to P's taking part in the research. Frankly, that seemed rather unreasonable. If the carer or friend says that there should be no further research, there should be no further research and no further argument about it.
	Government amendments Nos. 11 and 12 deal with research in emergency cases. There were some concerns that the Bill as drafted was not clear enough about research done in emergency and acute medical settings. An example would be someone who had a head injury or stroke, for which swift treatment is often vital. There may be ways in which research could be done in relation to such treatment. Pumping someone's heart 15 times instead of 10 times in order to revive them might be relevant.
	Presently, it is unclear whether consent is required before such treatment can be carried out. The amendments clarify the point that the provisions apply to cases where urgent treatment is needed. I hope that that makes our intention clearer—that we do not envisage the provisions covering circumstances where a researcher just wants to act quickly. Rather, they apply to where people are suddenly incapacitated and the research relates to their particular condition at the time. Again, the research team would have to agree the specific detailed proposals with the research ethics committee before a trial could be approved.
	Government amendments Nos. 13 and 14 help to clarify the provisions on advance decision and the final amendments that we have suggested on research are also clarificatory. Clause 33 states that a researcher must not act in a way that is contrary to a person's advance decision. Amendments Nos. 13 and 14 make it clear that that applies to any earlier statement a person has made about not participating in research and is not limited to advance decisions as defined in clauses 24 to 26. If someone has said in advance that they are opposed to medical research and do not want to take part in it, the researcher must respect that and not enrol them in the trial.
	In conclusion, I understand that there are difficult issues surrounding research, about which hon. Members feel very strongly. People who represent those who lack capacity, including their families or carers, have made it clear that they feel it would be wrong to exclude people from being able to participate in and benefit from research, either for themselves or others. They feel that it would be almost discriminatory to introduce such a measure. What we have tried to do within the Bill is to balance that need against some very stringent safeguards. We in Parliament are able to lay down some of the necessary safeguards and, by working through codes of practice, implement them. I hope that hon. Members will withdraw their amendments and accept the Government ones.

Kevin Barron: I agree with the hon. Members for Bournemouth, West (Sir John Butterfill) and for Tiverton and Honiton (Mrs. Browning) about the extent of the powers that the Secretary of State could use if he were to bring in an order under new clause 3. It would be a brave and potentially foolish Secretary of State who wanted to deal with issues such as sterilisation or abortion by making an order, yet the new clause might well allow that to happen.
	The hon. Member for Stone (Mr. Cash), who is no longer in his place, was right to bring certain issues to our attention. He was absolutely right to mention the conventions and ethics that members of the medical profession adopt. They are always important when we are trying to bring into law, as it were, the legal rules that have developed under common law in recent years.
	I hope that the hon. Member for Somerton and Frome (Mr. Heath) was satisfied, as I was, by what the Minister said about diagnostic tests. I believe that the profession has a right to ask questions about that as we attempt to bring this law to the statute book.
	The hon. Member for Beaconsfield (Mr. Grieve) mentioned the use of emotive language. I would not use a phrase like "guinea pigs" in respect of the use of incapacitated people for research, and I would not condone the clauses on research if such language were used. However, in some areas it is vital to use people who lack capacity for research purposes. Such research must be carried out properly, but the benefits can extend beyond the person involved to other people who may suffer similar incapacity. An obvious example concerns people who lack capacity as a result of road accidents or head injuries. The effects do not always last forever, as people make progress with such injuries. I am no expert, but I am sure that the treatments and drugs derived from such research benefit others in similar circumstances. The medical profession wants people to know that there are legitimate reasons for conducting such research when the aim is to assist people who might in the future lose capacity because of similar accidents.
	I am sure that the BMA will be reassured by what my hon. Friend the Minister said in response to the concerns that it has expressed. I thank her for the clarification that she has supplied. The code of conduct offers more in the way of explanation about those matters into which research can be conducted, and I hope that the BMA will be satisfied with what she said.
	I beg to ask leave to withdraw the motion.
	Motion and clause, by leave, withdrawn.

New Clause 5
	 — 
	Appointment of independent advocates (No. 2)

'(1)   The appropriate authority must arrange, to such an extent as he considers necessary, to maintain the principles set out in section 1 of the Act, for independent advocates to be available to assist a person P when another person D is considering doing an act, or making a decision to do an act.
	(2)   The assistance available under the arrangements must include—
	(a)   assistance to permit an encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;
	(b)   assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so;
	(c)   assistance to maintain the principles set out in section 1 of this Act.
	(3)   The appropriate authority may make regulations—
	(a)   as to the appointment or recognition of independent advocates for the purpose of this Act;
	(b)   as to the functions of independent advocates for the purposes of this Act;
	(c)   that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
	(d)   for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.
	(4)   In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.
	(5)   The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
	(6)   The appropriate authority may make regulations as to the specified circumstances in which independent advocacy must be made available which shall include considerations of a major change in a person's accommodation and/or support arrangements where the accommodation or support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.
	(7)   A major change for the purpose of subsection (6) means any change to—
	(a)   accommodation for a continuous period intended to or likely to exceed 28 days or
	(b)   any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where accommodation or support is to be paid for in whole or in part from public funds, or
	(c)   where the arrangements need to be made as a matter of urgency.
	(8)   In this section "the appropriate authority" means—
	(a)   in relation to the provision of the service of independent advocates in England, the Secretary of State, and
	(b)   in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'. —[Paul Holmes]
	Brought up, and read the First time.

Paul Holmes: I beg to move, That the clause be read a Second time.

Madam Deputy Speaker: With this it will be convenient to take the following amendments: No. 48, in page 19, line 10, leave out 'Independent consultee service' and insert 'Independent advocates'.
	No. 49, in page 19, line 11, leave out 'independent consultees' and insert 'independent advocates'.
	No. 50, in page 19, line 13, leave out 'independent consultees' and insert 'independent advocates'.
	No. 51, in page 19, line 16, leave out 'independent consultees' and insert 'independent advocates'.
	No. 52, in page 19, line 17, leave out 'independent consultees' and insert 'independent advocates'.
	No. 53, in page 19, line 20, leave out 'independent consultee' and insert 'independent advocate'.
	No. 54, in page 19, line 22, leave out 'independent consultee' and insert 'independent advocate'.
	No. 55, in page 19, line 32, leave out 'consultee' and insert 'advocate'.
	No. 56, in page 19, line 42, leave out 'independent consultee's' and insert 'independent advocate's'.
	No. 57, in page 20, line 1, leave out 'independent consultees' and insert 'independent advocates'.
	No. 58, in page 20, line 3, leave out 'independent consultees' and insert 'independent advocates'.
	No. 34, in page 20, leave out lines 11 to 13.
	No. 35, in page 20, leave out lines 37 to 39.
	No. 59, in page 21, line 2, leave out 'independent consultee' and insert 'independent advocate'.
	No. 60, in page 21, line 8, leave out 'independent consultee' and insert 'independent advocate'.
	No. 61, in page 21, line 16, leave out 'independent consultee' and insert 'independent advocate'.
	No. 62, in page 21, line 17, leave out 'independent consultee' and insert 'independent advocate'.
	No. 36, in page 21, leave out lines 39 to 41.
	No. 33, in page 22, line 2, at end add—
	'or if accommodation would be provided but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.'.
	No. 63, in page 22, line 12, leave out 'independent consultee' and insert 'independent advocate'.
	No. 64, in page 22, line 19, leave out 'independent consultee' and insert 'independent advocate'.
	No. 65, in page 22, line 31, leave out 'independent consultee' and insert 'independent advocate'.
	No. 66, in page 22, line 33, leave out 'independent consultees' and insert 'independent advocates'.
	No. 67, in page 22, line 38, leave out 'independent consultee' and insert 'independent advocate'.
	Government amendments Nos. 15 and 16.

Paul Holmes: New clause 5 continues a debate that occupied some time in Standing Committee. The Government propose to introduce independent consultees, along the lines of existing advocates, to advise NHS bodies and local authorities about what is in a person's best interests when a decision is being made about serious medical treatment, or before certain types of accommodation are provided. The Government also propose to provide £6.5 million to fund the arrangements, but only for persons without friends and family—the unbefriended.
	Much of that is good, as far as it goes, but concerns remain. The Making Decisions Alliance encompasses some 40 different disability campaigning groups and has been at the forefront in expressing those concerns. It said that what the Government call the independent consultee service could cause confusion by becoming a rival to the existing independent advocacy services and it believes that there is no need for two such services. That is why new clause 5 would replace all the references in the Bill to independent consultees with the phrase "independent advocates". Advocacy services already fulfil the role of independent consultees and make representations to decision makers. There is no need for a completely new service, with a completely new title to explain what it does.
	There is also concern about the restriction of the independent consultee service simply to the unbefriended. If the Government's advocacy-plus, as Ministers dubbed it in Committee, is to involve highly trained, skilled and experienced staff, why deny their services to those people who have family and friends?

Tim Boswell: I am grateful to the hon. Gentleman for giving way as it will save me having to speak in this debate. May I cite to him the example—it was mentioned in Committee—of cases in which there are family disagreements? In such cases, it may be important to represent the views of the person without capacity in an objective way.

Paul Holmes: We did discuss that example in Committee and it would indeed be helpful if the independent advocate or consultee were available to all relevant people.

Rosie Winterton: In view of the time, perhaps I could take the hon. Gentleman back to the discussions that we had in Committee. I made it clear that we would consider how we could extend the role of the independent consultee in just the circumstances that the hon. Member for Daventry (Mr. Boswell) outlined. I also said that it was important that we consulted widely on that before deciding absolutely who else should be included with the unbefriended.

Paul Holmes: I welcome the Minister's reassurances on that point, but would the service be extended only in instances of family conflict about the advice given to family members, or would it be extended to those who are represented by friends and family but would benefit from the expertise of trained advocacy staff?

Rosie Winterton: That is exactly why we said that we wanted to consult more widely on the issue. Several examples might arise of circumstances in which people would feel that it was appropriate for an independent consultee to be involved, without upsetting the principle that if people were reaching decisions amicably we would not intrude in family matters.

Paul Holmes: There is still a feeling in the Making Decisions Alliance that the family carer is in the best position to know the views and safeguard the best interests of the person involved, but the independent advocate— as a trained expert—is more likely to know how to navigate the system better. There would always be a complementary role for the advocate to add their expertise and training to facilitate the process, even when family and friends are present.

Rosie Winterton: Does the hon. Gentleman also accept that in some circumstances people might think that that was intrusive? The presence of the advocate could cause difficulties in families who are in vulnerable situations. We have to strike the right balance when making such decisions.

Paul Holmes: The Minister is correct and the Committee received some evidence on that point from a Welsh organisation of families and carers, who perceived a danger of intrusiveness. However, I am sure that any Government organisation would take due care with that and not tread on people's toes.
	New clause 5 tries to address two other concerns. One is that the Government version of an independent consultee is available only once it has been established that a person lacks capacity, but the experience of the existing independent advocates is that in many cases someone is thought to lack capacity, but is able to express their views when given the appropriate support. New clause 5 tries to extend the principle of independent advocacy to support people during the process of determining whether they lack capacity, as it will often turn out that they have capacity if given support.
	The Making Decisions Alliance has lobbied the Government on the second concern. It sought and received Government confirmation that the overriding function of independent advocacy is to support the individual, rather than the decision maker. It is felt to be important that the Bill should be amended by new clause 5 to write that verbal clarification into the Bill.

Tom Clarke: I know that time is against us, but if my hon. Friend the Minister has the opportunity to confirm that instead of "consultee" the word "advocacy" will appear in the Bill, that would be very welcome.

Rosie Winterton: I know how strongly my right hon. Friend feels about that matter and I can give him—
	It being half-past Five o'clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—
	The House divided: Ayes 106, Noes 345.

Question accordingly negatived.
	Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day.]

Clause 3
	 — 
	Inability to make decisions

Amendment made: No. 3, in page 2, line 25, at end insert—
	'(   )   A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand a general explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).'.—[Mr. Jim Murphy.]

Clause 4
	 — 
	Best interests

Amendment made: No. 4, in page 2, line 35, leave out
	'circumstances appearing to him to be relevant'
	and insert 'relevant circumstances'.—[Mr. Jim Murphy.]
	Amendment proposed: No. 1, in page 2, line 41, at end insert—
	'(3A)   Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.—[Mr. Duncan Smith.]
	Question put, That the amendment be made:—
	The House divided: Ayes 174, Noes 326.

Question accordingly negatived.
	Amendment proposed: No. 2, in page 3, line 3, at end insert—
	'(4A)   He must, where the determination relates to life-sustaining treatment, begin by assuming that it will be in the person's best interests for his life to continue.'.—[Mr. George Howarth.]
	Amendment proposed to the proposed amendment: (a) in line 2, leave out 'best'.—[Mr. Jim Murphy.]
	Question, That the amendment be made, put and agreed to.
	Amendment, as amended, agreed to.

Clause 24
	 — 
	Advance decisions to refuse treatment: general

Amendment proposed: No. 32, in page 14, line 10, leave out clause 24.—[Dr. Iddon.]
	Question put, That the amendment be made:—
	The House divided: Ayes 110, Noes 366.

Question accordingly negatived.
	It being after Six o'clock, Mr. Deputy Speaker, pursuant to Order [this day], proceeded to put forthwith the Questions necessary to dispose of business to be concluded at that hour.

Clause 31
	 — 
	Requirements for approval

Amendment proposed: No. 43, in page 17, line 24, at end insert—
	'(c)   be in the best interests of P.'.—[Mr. Grieve.]
	Question put, That the amendment be made:—
	The House divided: Ayes 148, Noes 321.

Question accordingly negatived.

Clause 4
	 — 
	Best interests

Amendment made: No. 5, in page 3, line 27, at end insert—
	'( ) "Relevant circumstances" are those—
	of which the person making the determination is aware, and
	which it would be reasonable to regard as relevant.'.— [Mr. Lammy.]
	No. 37, in page 3, line 27 at end insert—
	'(8A)   "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain his life.'.—[Mr. Lammy.]

Clause 6
	 — 
	Section 5 acts: limitations

Amendment made: No. 38, in page 4, line 23 , leave out subsection (7).—[Mr. Lammy.]

Clause 14
	 — 
	Protection of donee and others if no power created or power revoked

Amendment made: No. 6, in page 8, line 26, leave out 'events, facts or'.—[Mr. Lammy.]

Clause 31
	 — 
	Requirements for approval

Amendment made: No. 7, in page 17, line 15 , after 'to', insert—
	', or causes or contributes to,'.—[Mr. Lammy.]

Clause 32
	 — 
	Consulting carers etc

Amendments made: No. 8, in page 18, line 16, leave out from 'project' to end of line 17 and insert—
	', that he is withdrawn from it.'.
	No. 9, in page 18, line 17, at end insert—
	'(   )   But subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued.'.
	No. 10, in page 18, line 21, leave out subsections (7) and (8).
	No. 11, in page 18, line 26, after 'if', insert—
	'treatment is being, or is about to be, provided for P as a matter of urgency and'.
	No. 12, in page 18, line 28, after 'is', insert 'also'. —[Mr. Lammy.]

Clause 33
	 — 
	Additional safeguards

Amendments made: No. 13, in page 19, line 3, after 'to', insert '—
	(i) '.   
	No. 14, in page 19, line 3, after 'effect', insert ', or
	(ii)   any other form of statement made by him and not subsequently withdrawn,
	of which R is aware.'.—[Mr. Lammy.]

Clause 40
	 — 
	Codes of practice

Amendments made: No. 15, in page 23, line 9, at end insert—
	'(   )   for the guidance of independent consultees,'.
	No. 16, in page 23, line 21, at end insert—
	'(   )   as an independent consultee,'.—[Mr. Lammy.]

Clause 42
	 — 
	Ill-treatment or neglect

Amendment made: No. 17, in page 24, line 14, leave out subsection (1) and insert—
	'(1)   Subsection (1A) applies if a person ("D")—
	(a)   has the care of a person ("P") who lacks, or whom D reasonably believes to lack, capacity,
	(b)   is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or
	(c)   is a deputy appointed by the court for P.'.
	(1A)   D is guilty of an offence if he ill-treats or wilfully neglects P.'.—[Mr. Lammy.]

Clause 55
	 — 
	The public guardian

Amendment made: No. 18, in page 30, line 8, leave out from 'Guardian' to end of line 10 and insert '—
	(a)   provide him with such officers and staff, or
	(b)   enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,
	as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.'.—[Mr. Lammy.]

Clause 56
	 — 
	Functions of the public guardian

Amendments made: No. 19, in page 30, line 42, after 'provision', insert 'as to'.
	No. 20, in page 30, line 43, leave out first 'as to'.
	No. 21, in page 30, line 43, leave out second 'as to'.
	No. 22, in page 31, line 1, leave out 'as to'.
	No. 23, in page 31, line 2, leave out 'as to'.
	No. 24, in page 31, line 2, at end insert—
	'(   )   exemptions from and reductions in such fees;
	(   )   remission of such fees in whole or in part;'.
	No. 25, in page 31, line 3, leave out 'as to'.—[Mr. Lammy.]

Clause 60
	 — 
	Interpretation

Amendment made: No. 39, in page 32, line 31, leave out '6(7)' and insert '4(8A)'.
	—[Mr.Lammy.]

Clause 61
	 — 
	Rules, regulations and orders

Amendments made: No. 26, in page 33, line 27, after 'than', insert—
	'regulations under section 39 or'.
	No. 27, in page 33, line 29, at end insert—
	'(   )   A statutory instrument containing regulations made by the Secretary of State under section 39 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.'.—[Mr. Lammy.]

Clause 63
	 — 
	Minor and consequential amendments and repeals

Amendment made: No. 28, in page 34, line 11, leave out subsection (5) and insert—
	'(   )   The amendments that may be made under subsection (4)(b) are in addition to those made by or under any other provision of this Act.'.—[Mr. Lammy.]

Schedule 1
	 — 
	Lasting powers of attorney: formalities

Amendment made: No. 29, in page 36, line 3, after 'it', insert—
	'(or has had it read to him)'.—[Mr. Lammy.]

Schedule 3
	 — 
	Property and affairs: supplementary provisions

Amendments made: No. 30, in page 46, line 11, leave out sub-paragraphs (1) and (2) and insert—
	'(1)   If the donor of a lasting power is habitually resident in England and Wales at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—
	(a)   the law of England and Wales, or
	(b)   if he specifies in writing the law of a connected country for the purpose, that law.
	(2)   If he is habitually resident in another country at that time, but England and Wales is a connected country, the law applicable in that respect is—
	(a)   the law of the other country, or
	(b)   if he specifies in writing the law of England and Wales for the purpose, that law.'.
	No. 31, in page 47, line 4, leave out from first 'party' to end of line 14 and insert—
	   '(2)   The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—
	(a)   where the representative and third party are in England and Wales when entering into the transaction, sub-paragraph (3) applies;
	(b)   where they are in another country at that time, sub-paragraph (4) applies.
	(3)   This sub-paragraph applies if—
	(a)   the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than England and Wales, and
	(b)   the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.
	(4)   This sub-paragraph applies if—
	(a)   the law applicable to the authority in one or more respects is, as a result of this Part of this Schedule, the law of England and Wales, and
	(b)   the representative is not entitled to exercise the authority in that respect (or those respects) under that law.
	(5)   This paragraph does not apply if the third party knew or ought to have known that the applicable law was—
	(a)   in a case within sub-paragraph (3), the law of the other country;
	(b)   in a case within sub-paragraph (4), the law of England and Wales.'.—[Mr. Lammy.]
	Order for Third Reading read.

David Lammy: I beg to move, That the Bill be now read the Third time. I do so with great pleasure.
	This is an important and ethical Bill. Our progress on it has been fast, and much of today's debate has pertained to that. I think it right that, to meet the concerns of Members throughout the House, the Lord Chancellor undertook to continue discussions and negotiations until the eleventh hour, and I am pleased that Members have felt able to support the Government in the Lobbies on the basis of that. I am glad that we have achieved the ends, even if the means were a little unusual for Parliament.

Kevin McNamara: I apologise for intervening so early in my hon. Friend's speech, but can we take it that the Government accept completely, precisely and in terms the interpretation of the correspondence between the Lord Chancellor and Archbishop Smith that the archbishop gives in his letter dated today?

David Lammy: I hope that my hon. Friend will forgive me if I say that I have been here all afternoon while others have continued the negotiations. We have talked about the exchange of letters. I have said that I accept the spirit of the intention behind the amendments. The discussion continues so that a draft amendment can be tabled in the other place, and can be debated here in due course.
	As I said, I have been here while discussions have gone on. I am pleased that they have been going on, because they were part of an effort to make the Bill better. I want to pause for a moment, however, to explain why the Bill is so important and why organisations that work daily with vulnerable people who need such legislation—organisations such as the Alzheimer's Society, Scope, Mencap, the Disability Rights Commission and Age Concern—support it. They support it because they want people who lack mental capacity to be valued and treated with respect.

Tom Clarke: I thank my hon. Friend for his courtesy throughout our proceedings. As he mentioned disability organisations, and as I asked the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton) a question but unfortunately time ran out, will he confirm that the word "advocates" will be used rather than the word "consultees"?

David Lammy: My right hon. Friend's points will be considered in the other place. We value the spirit in which he has spoken about advocacy throughout the Bill's passage so far.
	Why have organisations that have campaigned on what are indeed advocacy issues, and have worked in particular with people with learning disabilities, supported the Bill? They want those who lack capacity at different points, or who lack it entirely, to be able to make as many decisions as possible. The Bill's decision-specific approach to capacity means an end to the days when people were labelled incapable. Instead, they will be assumed to have capacity for each and every decision until it is established that they lack it.

Angela Browning: I served on the Scrutiny Committee and the Standing Committee, and I shall abstain on Third Reading tonight, as I did on Second Reading, because the Minister has not yet dealt with two key elements. First, end-of-life issues have not been dealt with satisfactorily here and they will now be passed to the other place. Secondly, as I said in Committee and as the Scrutiny Committee clearly recommended, we need to close the Bournewood gap. The Government have said nothing about how they intend to close that gap. Is the Minister going to use this Bill or existing mental health legislation to do so? He cannot afford to wait for the draft mental health Bill, which I am currently scrutinising.

David Lammy: The hon. Lady has heard the substance of my remarks on the issues pertaining to life-sustaining treatment. We are where we are, and all of us must applaud the fact that we are beginning to settle these important and vexing issues. Throughout our proceedings the hon. Lady has raised the issue of the Bournewood gap, and as we have said, we must consult on that important decision. I hope that she realises that we are doing so, notwithstanding her concern about how the Government deal with the problems arising from that case post-consultation.

Iain Duncan Smith: Will the Minister give way?

David Lammy: If I may I shall make some progress.
	Those who support the Bill do so because they want those who lack mental capacity to be at the heart of the decision-making process. The Bill requires that everything done for someone who lacks capacity should be in their interests, and that it must be the best for that individual at that time, taking into account all the relevant factors. Those who support the Bill do so because they want professionals and carers—some 6 million of them—to know what they can do for and to people who lack capacity, and when and how they can do it. The Bill and the code of practice, which has statutory effect, will provide the guidance that we were able to put in draft form, and to which Members and various organisations have contributed.
	Throughout the development of this legislation, the Government have listened to the wide range of people affected by it, some of whom I mentioned earlier. They include groups representing people with disabilities, the 39 organisations in the Making Decisions Alliance, professional bodies, the Catholic Church and pro-life organisations. The Government have also consulted Members extensively, and the Bill has developed and improved greatly as a result of such consultation. When the Government listen and act as a result of Members asking us to listen, Members cannot then accuse us of bypassing Parliament.

Iain Duncan Smith: The Minister says that the Government have listened, but I do not understand why we have reached this stage. What consultation with Opposition Members and his own colleagues has to offer us is two letters at the eleventh hour, indicating that changes will be made in the Lords. That does not suggest that the Government are listening, given that such changes could have been made long before. One letter states:
	"Any decisions must be in the patient's best interests",
	and the other letter, from Archbishop Smith, says the same. But even knowing that, the Minister moved an amendment to amendment No. 2, which was tabled by one of his own hon. Friends, in order to remove the word "best". Are the Government going to reinsert "best" in the Lords? How is the Minister going to deal with this issue?

David Lammy: I hope that the right hon. Gentleman knows that the situation is not as simple as that. We tabled the amendment to remove the word "best" because we want the "best interests" clause to constitute the objective judgment at the end of the process. As drafted, amendment No. 2 did not achieve that. The new amendment, which the Lord Chancellor discussed today, deals with purpose, motive and best interests at the end of the process, so the two amendments are different.
	On the Bland judgment and the 36 subsequent cases, I make no apology for the way in which we have dealt with this complex issue, which has challenged the minds of lawyers throughout the country. Indeed, different lawyers have taken different views about the effect of the amendment.
	The Government position is clear: we do not want to see Bland overturned, which is also the position of the Catholic archbishops. We have sought to ensure that we do not bring in euthanasia by omission, while at the same time resisting overturning the Bland judgment. That is why discussions have continued and why, even as I speak, I am receiving submissions on the negotiations. We may not like the means, but we should be pleased with the ends and I hope that the matter will be settled in the other place before it comes back here.
	Many hon. Members have made invaluable contributions to the scrutiny of the Bill. The hon. Member for Daventry (Mr. Boswell) has been remarkable in his thoroughness. He is a self-confessed serial amender who relentlessly tabled probing amendments in Committee, which helped us to discuss key aspects of the Bill in greater depth. Throughout the process, he balanced constructive questioning with support for the Bill.
	It is as a result of one of the hon. Gentleman's questions that we tabled two amendments to clause 4. We wanted to make it clear that the test of best interests should be objective. Our amendments make it clearer that we must take into account all the factors that a reasonable person would consider relevant—an important clarification that I hope was not entirely lost, at least for the Hansard record, in our earlier debate about life-sustaining treatment. The key point is that we cannot substitute our own judgments: they must be objective with a doctor balancing all the issues before him, particularly when they relate to life-sustaining treatment.

David Drew: So will the Minister give an assurance that when we receive the final outcome of the Burke judgment, it will play a part in respect of the rubric not just of the Bill but of the code of practice?

David Lammy: My hon. Friend will know that Burke is under appeal now and that important issues are involved in that case concerning positive statements of what one wants and desires. The Government will consider it in due course as the case proceeds.
	The hon. Member for Sutton and Cheam (Mr. Burstow) was also a valued member of the Committee. It was his amendment and a similar one tabled by the hon. Member for Tiverton and Honiton (Mrs. Browning) that led us to introduce an amendment to clause 3, under which the Bill provides that information must be explained to a person in a way that is appropriate to his circumstances. There is no longer any doubt: no one should be labelled incapable merely because insufficient efforts have been made to help him understand and communicate.
	On life-sustaining treatment, I have already mentioned that discussions on the issue continued up to the very last moment today, showing how very seriously the Government take people's concerns, particularly relating to the vulnerable, to advance decisions and to the power of attorney. I said earlier that we greatly welcome the amendment tabled by my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth). We value his commitment to the Bill, to helping vulnerable people and to building consensus around his amendment. We shall take the substance of his amendment forward, as I explained earlier, subject to the adjustments introduced by the Government, just as we have also accepted the spirit of new clauses 1 and 2. We want to build on my hon. Friend's amendment to make it clear that the Bill does not authorise any decision motivated by a desire to bring about a person's death. We have also made it clear that we want to ensure that advance decisions about life-sustaining treatment are recorded in writing and witnessed. We are also exploring with health care professionals whether we can make it a requirement for people to consult their doctor before taking such an advance decision.
	Let me make it quite clear that the Bill both clarifies the law and makes it safer. The difficult and sensitive cases will, as now, go to court. Our new court of protection means that cases of persistent vegetative state will still go to court.
	Throughout the Bill's passage hon. Members have talked about what might happen when wicked people—be they doctors, attorneys or others—conspire to bring about a person's death without regard to that person's best interests. We have sought to put safeguards into the Bill. None of us can say that such things can never happen again, but the Bill's purpose is to protect vulnerable people as much as possible. I am sure that we have achieved that, and in that regard I refer in particular to clause 58 and the work of the Joint Committee on Human Rights. We have also worked with the Catholic community on amendments dealing with advanced decisions, life-sustaining treatment and the purpose or motive that might lie behind bringing about a person's end.
	I hope that I have been able to paint a clear and accurate picture of what the Bill will do. Much information has been spread about it, and I want to reassure the House and the public that it is about protecting the rights and interests of vulnerable people, regardless of the present political environment. People in Britain will benefit from the Bill, and we should be proud of it. It has been coming for 15 years, and I am very pleased to be the Minister opening this Third Reading debate.

Tim Boswell: This Bill raises immensely serious issues. All parties involved in the debate—and Ministers too, largely—have engaged in the effort required to put it into an acceptable state. As the Minister said, the Bill has had a 15-year genesis already. Hon. Members have worked together to achieve the common objective of assisting persons with mental capacity problems. We all recognise the sensitivity of the issue, and have searched for the appropriate safeguards.
	The case for the Bill was well expressed on page 27 of the recent report from the Joint Committee on Human Rights. The Committee states:
	"Our view on initial consideration is that the Bill should be broadly welcomed from a human rights perspective because it enhances the ability of people who lack capacity to make their own decisions where they can, and makes it more likely that sound decisions will be made on their behalf when they cannot make those decisions for themselves."
	That is a strong case for the Bill, but the Committee continues in the same paragraph:
	"A number of human rights issues arise, mainly concerning the adequacy of the various safeguards contained in, or envisaged by, the Bill."
	That warning is perfectly reasonable. The Bill will help by codifying the existing common law, for example in relation to advance decisions. I was prepared to support the Government in the Lobby tonight on that, although I was not prepared to do so on other matters.
	I want to emphasise the safeguards that are required and, for reasons of convenience of reference, I shall follow the schema adopted by the Joint Committee. First, I turn to the matter of the Bournewood gap. My hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) spoke characteristically powerfully about a matter on which the Minister said that he and his colleagues were still consulting. However, we need to deal with the problem promptly, and this Bill is the appropriate vehicle for that.

Angela Browning: My hon. Friend will know that in Standing Committee I tabled new clauses to try and close the Bournewood gap. I understand that the Minister needs to consult, and I know that the lawyers are taking their time and are supplying differing legal advice. I do not criticise the Government for that, but it is clear that they have three options. If they opt for closing the Bournewood gap by means of this Bill, the relevant provision will have to be introduced in another place. I am concerned that this Chamber has not had a chance to discuss the matter in full, as I would have liked.

Tim Boswell: My hon. Friend raises the issue of what will come back from the other place. Given the state of the Bill at the moment, I hope that Ministers and Whips will take very seriously the need to involve this House as well.
	The wider issues of reservation on human rights grounds also referred to by the Joint Committee include restraint, not just in the context of Bournewood; advance decisions; the conditions for research, which we have just been discussing; the need to see clear and unequivocal evidence in writing of the Government's commitment to deal with issues around motives for ending life, which has been expressed almost universally in this House; and other conditions of care, including nutrition and hydration. Those are central issues.
	This afternoon's proceedings did little good to the reputation of the Department or the Minister, I am sorry to say. I hope that he and others have learned their lesson about the credibility of the Bill. It is right, proper and essential to consult all relevant bodies, but the prior consultees should always be the Members of this House and their interests in the matter.

John Gummer: Does my hon. Friend agree that it is very difficult for us to reassure our constituents that their concerns are being properly heard in this House when the events of today show that the work has not been done, the papers have not been presented and we have not been involved, because of the incompetence of Ministers rather than an intention on their part to do wrong? We must be involved more effectively or our constituents feel disfranchised.

Tim Boswell: I have every sympathy with the remarks of my right hon. Friend on that point. I can understand why, in the circumstances, the Minister might want to get shot of the Bill and to pass it to his colleagues in the other place. I am sure that their lordships will do a good job of scrutiny on the Bill, but they are not the same as us and we still have an unfinished interest in it.
	The Minister was generous enough to mention that, as a result of pressure from Opposition Members in Committee, he has already carried out effective and useful improvements, especially in relation to the objectivity of the best interest test. I also acknowledge the introduction of the affirmative resolution procedure for any extension of the independent consultee service, which concerned many members of the Committee. However, every time one issue is resolved another aspect for concern arises. Ministers should not think that the list that I have given is a comprehensive one.
	The conclusion is that some progress has been made in considerations in this House, but the Bill is unfinished business and further safeguards are required. For that reason, although I support firmly the principle of the Bill, I cannot give it my support in the Lobby tonight.

Paul Burstow: I share some of the concerns that the hon. Member for Daventry (Mr. Boswell) expressed, but I have not come to the same conclusion as to how I should cast my vote. If there is still room to improve the Bill through further scrutiny, albeit in the other place, we should allow it a Third Reading as long as the principles behind the Bill are sound and the purpose of the Bill is good—which the hon. Gentleman confirmed.
	I share the hon. Gentleman's concern about feeling like a bystander today on at least one aspect of the consideration of the Bill. The exchange of correspondence around the Chamber, which eventually became available to the Minister, was not the most desirable occurrence. It will have left many outside—and some inside—the House questioning the process that we have been through today. What the Minister said on Third Reading was helpful, but this House still has a clear interest in what will be considered in the other place and the amendments that will be tabled. I hope that the Minister will be able to give us some further indication of how Members of this House will be able to have some serious engagement with that ongoing process.

George Howarth: Will the hon. Gentleman give way?

Paul Burstow: Yes, but I hope that I am not being patronising on this occasion.

George Howarth: I want to record the fact that the hon. Member for Daventry (Mr. Boswell) and my hon. Friend the Minister have been helpful throughout the Bill's proceedings. Although some of this afternoon's events were unfortunate, the finger should not point directly at my hon. Friend.

David Lammy: I should like to point out to the hon. Member for Sutton and Cheam (Mr. Burstow) that, if truth be known, it is precisely because hon. Members on both sides of the House have been pressing the issues—scrutinising Bland, scrutinising purpose—that we have achieved what we have today. The hon. Gentleman should note that.

Paul Burstow: The proof of the pudding is in the eating. As we do not have the amendments, we do not know quite what we have achieved. I want to make clear why I shall support the Bill in the Lobby.
	As the Minister rightly said, the measure has been 15 years in the making, although some of today's comments were unfortunate, and the present law is confused and confusing. It allows people who lack capacity to be non-citizens because they lack rights and protections. It cannot be acceptable to leave the law as it currently is, which is why the Bill provides a necessary vehicle to give people far more control over their lives.
	The presumption of capacity is absolutely right. The principles set out at the beginning of the Bill have the potential to transform people's lives. They provide a framework in which those who act as proxies can, for the first time, take decisions with proper safeguards not only on health matters but also on welfare and finance. At present, those things are not clear and they need to be. The Bill provides the way to make them clear.
	We have strong support from Age Concern, the Alzheimer's Society, Mencap and many others who see the Bill as potentially transformative of the lives of people with learning disabilities, autism and Down's syndrome, but it is only a Bill with potential, as the Disability Rights Commission told us at Second Reading. There are still issues to be addressed and I hope that, in the other place, they will be.
	There is the question of equal consideration for those who lack capacity and those who have capacity. There is the interface with the Disability Discrimination Act 1995 and the Disability Discrimination Bill. There is the need further to strengthen the provisions to ensure that a person who may lack capacity is given every possibility and opportunity to communicate their wishes, needs and feelings. Supporting further communication in that respect is extremely important.
	We had some useful exchanges on the question of independent consultees. We need to ensure that we end up with a system that is advocacy-plus rather than advocacy-lite, so that we really widen the scope of the role of independent consultees; for example, the system should pick up people who are befriended. We could also address the question of whether "consultee" is the right name. The Minister may ask, "What is in a name?", but it is important to many organisations outside this place.
	The hon. Member for Tiverton and Honiton (Mrs. Browning) tabled some important amendments in Committee. I pay tribute to her for her work championing the closing of the Bournewood gap, but the mechanism is still not clear. Will it be the draft Mental Health Bill that she is scrutinising, or this Bill? We need that clarity and I hope that it will be forthcoming when the Mental Capacity Bill goes to the Lords. At present, people lack the safeguards they need.
	Advance decisions have been a key concern throughout the debate, and I welcome what the Minister said. If, at the very least, we are to codify advance decisions to refuse—as the Bill would do—they must be in writing. It is wrong that the Bill does not address that point and it should certainly be picked up in the other place.
	The Bill advances the rights of those who lack capacity and, if we manage to address these issues in the other place, it will improve people's quality of life whether they lack capacity from birth or as a result of illness or accident. The Bill has been 15 years in the making and there is still room for improvement, but it deserves a Third Reading to give it the chance of that improvement.

Kevin McNamara: I cannot go into the Lobby with the hon. Member for Sutton and Cheam (Mr. Burstow) because I am still confused. I am confused about what happened this afternoon. I am confused by what seemed to be given with one hand and taken away with the other. In fact, if there were a third hand, it would have been snatched away even further. I may be confused because of my age—I therefore have a vested interest in the Bill—but I am certain that my hon. Friend the Minister is not at one with the interpretation that the archbishop gave to his conversations and correspondence with my noble Friend the Lord Chancellor. I asked him whether the legislation in the other House would reflect Archbishop Smith's understanding as contained in his letter to the Lord Chancellor. He said that that depends on the amendments and on the lawyers, but he could not say yes.
	When my right hon. Friend the Member for Dumbarton (Mr. McFall) asked my hon. Friend the Minister whether the legislation would encompass the spirit if not the letter of new clauses 1 and 2, he answered in the affirmative—he said the same in his winding-up speech—but new clause 2 specifically contains the provision about nutrition and hydration. My hon. Friend the Minister seemed throughout the debate to be hung up on Bland. Rightly or wrongly, as the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) said, we may have lost the argument on Bland, but for the purposes of our argument today, Bland was out of the window.
	All the amendments specifically gave to the courts the right to decide the situation when people are in a permanent vegetative state, so that was outside the argument, but my hon. Friend the Minister spent a lot of his time discussing that issue, as though it were being attacked, when, in fact, none of the amendments was attacking that issue. So we came to the question in Archbishop Smith's letter. His interpretation was that acts of omission in relation to nutrition and hydration would be included in the new legislation in another place, and we have not had a specific reply to that.
	I said earlier that I would give the Government the benefit of the doubt on these matters, and I am still prepared to do so on Third Reading by not voting against the Bill, but my hon. Friend the Minister and the Lord Chancellor should bear it in mind that—whatever was agreed between the meeting of the parliamentary Labour party on Monday and meetings between the Lord Chancellor, the Prime Minister and other interested parties last night and undertakings given to Archbishop Smith—there is still an enormous question mark about what was and what was not agreed. Some of the things that my hon. Friend the Minister has said seem to be at variance with what Archbishop Smith seemed to suggest was said in his agreement with the Lord Chancellor. For that reason, I shall again abstain.

Iain Duncan Smith: I shall be brief; I do not have a lot of choice in the matter. May I simply say this evening that I am not convinced by what took place at the Dispatch Box during the debates on new clauses 1 and 2? I accept fully that the Minister's colleagues would have wanted to believe the best. That is the case in all parties—we want to believe the best of Governments and Ministers of our own party and accept them at face value—but I am reminded of the expression, "A bird in the hand is worth two in the bush." I did not find a bird in the hand at the end of the debate; what I found were promises.
	With respect, the Minister has had weeks and weeks to come up with this. I recall that on the Hunting Bill the Government said that this place must make decisions and that the other place up the Corridor was not worthy of being relied on to make decisions. Tonight the Minister comes to the Dispatch Box and tells us, "Actually, we will do all the decision making in the other place because this place is not worthy of making decisions." I simply say to everyone in the House tonight that I cannot support the Bill as it stands right now.
	It being Seven o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the Bill be now read the Third time.
	The House divided: Ayes 354, Noes 118.

Question accordingly agreed to.
	Bill read the Third time, and passed.

DELEGATED LEGISLATION

Mr. Deputy Speaker: With the leave of the House, I shall put motions 3 to 11 together.
	Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6), (Standing Committee on Delegated Legislation),

Freedom of Information

That the draft Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004, which was laid before this House on 4th November, in the last Session of Parliament, be approved.

Freedom of Information

That the draft Freedom of Information (Time for Compliance with Request) Regulations 2004, which were laid before this House on 4th November, in the last Session of Parliament, be approved.

Legal Services

That the draft Institute of Trade Mark Attorneys Order 2004, which was laid before this House on 3rd November, in the last Session of Parliament, be approved.

Freedom of Information

That the draft Environmental Information Regulations 2004, which were laid before this House on 27th October, in the last Session of Parliament, be approved.

Urban Development

That the West Northamptonshire Development Corporation (Area and Constitution) Order 2004, dated 4th May 2004, a copy of which was laid before this House on 13th May, in the last Session of Parliament, be approved.

Financial Services and Markets

That the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2004 (S.I., 2004, No. 2737), dated 16th November 2004, a copy of which was laid before this House on 16th November, in the last Session of Parliament, be approved.

Northern Ireland

That the draft Financial Provisions (Northern Ireland) Order 2004, which was laid before this House on 25th November, be approved.

International Immunities and Privileges

That the draft Agency for International Trade Information and Co-operation (Legal Capacities) Order 2004, which was laid before this House on 16th September, in the last Session of Parliament, be approved.

Non-Domestic Rating

That the draft Non-Domestic Rating (Chargeable Amounts) (England) Regulations 2004, which were laid before this House on 2nd December, be approved.—[Derek Twigg.]
	Question agreed to.

EUROPEAN DOCUMENTS

Motion made, and Question put forthwith, pursuant to Standing Order No. 119 (9), (European Standing Committees),

Procedure for the adoption of measures relating to visas, asylum and immigration

That this House takes note of European Union document No. 15130/04, and Corrigendum 1; notes that the draft Council Decision is one of the final steps in the arrangements to move asylum and immigration measures to QMV and co-decision, as agreed at Amsterdam and Nice; and supports the Government's position that the procedure will provide for more efficient decision-making in the Council.—[Derek Twigg.]
	Question agreed to.

PETITION
	 — 
	Pensions payments

Valerie Davey: I am pleased to present this petition, which was handed to me by Anne Crabtree, the co-ordinator of Bristol senior citizens forum, an active group with some 3,000 members.
	The petition states:
	To the Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled.
	The Humble Petition of Anne Crabtree pensioner and others of like disposition sheweth
	That having been able for many years to collect pensions payments by way of pensions order book, that right is now being removed and replaced with the Direct Payment scheme.
	Wherefore your Petitioners pray that your honourable House shall urge the Ministry of Work and Pensions to consider the plight of Anne Crabtree and others in a similar situation and to endeavour to keep the Order Book system in place of or in addition to the intended regime.
	And your Petitioners, as in duty bound, will ever pray.
	To lie upon the Table.

RAIL SERVICES (BEXHILL)

Motion made, and Question proposed, That this House do now adjourn.—[Derek Twigg.]

Gregory Barker: I start by thanking the Under-Secretary of State for Transport, the hon. Member for Staffordshire, Moorlands (Charlotte Atkins), not only for coming to the House this evening to answer my debate, but for the profoundly important decision that she made two weeks ago to allow the Bexhill link road to go ahead.
	A new route to join the A259 to the A21 is vital to my constituency and will reduce pollution and chronic congestion. The new proposal is on a smaller scale; nevertheless, it is a significant improvement on the old Hastings bypass. I know that the Minister had to examine the proposal carefully. However necessary any new road might be, important environmental considerations must always be weighed up. I am glad that she agreed with me and the vast majority of my constituents that in this case the benefits of the scheme significantly outweighed the costs.
	I know that the decision was a financial close call, as funding for new transport projects in our part of the country is limited, and the Minister had to turn down several competing projects. I am particularly grateful to her for taking the trouble to meet me and others from my area to listen to the arguments in person, before reaching her decision. Her courtesy and diligence will stand her in good stead as she climbs the ministerial ladder.
	The green light for the link road has come as a huge relief to my community. It is a major step forward in our endeavour to regenerate the economies of both Bexhill and Hastings, and with it to improve the life chances of so many local people. The link road is vital to the creation of new jobs and to the opening up of land to build sustainable homes for local families, and in so doing relieving pressure to build in villages in areas of outstanding natural beauty. First and foremost, the Minister's decision recognised that improved connectivity is crucial to the future of the whole area.
	It is almost unbelievable that at the same time as that historic decision to improve the road infrastructure of our area, the Government, through the Strategic Rail Authority, could even countenance axeing the direct train service to Gatwick, East Croydon and London from Bexhill and significantly downgrading the coastal rail service.
	Earlier this year, the SRA published a document entitled, "Brighton Main Line, Route Utilisation Strategy", which has a nice picture of the clock at Brighton station on its cover. Richard Bowker's foreword to the document makes it clear that the document is primarily concerned with changes and improvements to the running of services from Brighton to London termini. Indeed, Mr. Bowker's foreword does not mention Bexhill, which gets a mention only towards the end of the executive summary.
	The report states:
	"there are a small number of disbenefits of the strategy compared with today's level of service".
	The third bullet point on page three states:
	"In order to deliver better performance across Eastbourne, and to reflect the local nature of the market between Eastbourne and Hastings, the through service from Hastings and Bexhill to London (via Gatwick) is now proposed to start and terminate at Eastbourne."
	That seemingly innocent afterthought to this completely Brighton-centred document would in fact have a devastating effect on the town of Bexhill were it allowed to be implemented. The psychological impact alone would be enormous. The net result of the proposal would be to lengthen the journey time to London and increase the scope for significant delays. Most importantly, however easy the SRA endeavours to make a platform change, the inescapable necessity of changing trains will have a profound effect on every passenger's willingness to use the train service.
	I appreciate that the principal aim of the route utilisation strategy is to improve performance, but there is very little in the SRA proposal that would be regarded by my constituents as an improvement, and a very great deal that would be seen as highly damaging. The whole town of Bexhill has been united in condemning these proposals, which saw the light of day only at the very end of the statutory consultation period.
	Opposition to the plans goes right across all political party boundaries, and they have been strongly criticised by Rother district council, Hastings borough council, East Sussex county council, the Bexhill town forum, the Bexhill chamber of commerce and the Hastings and Bexhill taskforce, on whose board I sit and whose other members include the South East England Development Agency and the Government office for the south-east. I want particularly to pay tribute to the energetic campaign of Rother district council's lead cabinet member for transport, Councillor Ian Jenkins, who was one of the first to spot the dangers that the proposals pose to Bexhill.
	The impact on the town would hit trade, tourism, commuters, elderly passengers and students. I shall deal briefly with each of those groups. Many commuters have written to me to make clear their objections to the scheme, but none has put their case more articulately than my constituent, Mr. John Cormode, a management consultant residing in Bexhill who specialises in change management and business research. In a letter to the SRA, he wrote:
	"I was absolutely appalled to learn that the SRA is actively proposing changes that will cause a further considerable deterioration in the train service for customers between Bexhill and London, in a Government regeneration area.
	By abolishing the only direct rail link between Bexhill and London, making passengers change at Eastbourne, will add at least 30 minutes to the journey time—assuming the connections always work. If the connections do not work we can look forward to adding at least an hour and a half to the journey time! I am a season ticket holder from Cooden Beach to London and the daily journey time each way already takes 2 hours . . . it would be quicker to travel to Darlington or Brussels than Bexhill! The service will particularly deteriorate for the journey home, when there are even fewer trains from London to Bexhill than in the morning. At Cooden Beach up to 12 passengers regularly use the 0635 service—all of us will now not reach London until after 9 o'clock with further journeys to our place of work on top of this.
	The excuse that 'new' rolling stock is not compatible with the 'old' does not mean that these changes need to be made. You find it possible now to run 'new' rolling stock trains to London at 0635 and an 'old' rolling stock train for my journey home. To avoid inconveniencing your customers and to encourage the use of public transport all you need to do is to continue to run the complete trains of either old or new stock until you have enough of the new to withdraw the old, without compromising the service to commuters.
	Your proposals make even less sense at a time when central and local government, all the regional agencies and local business groups are doing everything possible to regenerate Bexhill and the surrounding area. I can think of no other single act by an agency like yourselves that will ensure that these regeneration plans and the local economy goes rapidly into reverse. The £6 million spent on creating the biggest arts centre in the South East at Bexhill, the funding of the University Centre in Hastings, or improving Bexhill and Cooden railway stations will not lead to regeneration if the SRA's proposals mean that they make it very much more difficult for the public to reach them, or people to visit, live and work from Bexhill."
	The Bexhill town forum has been equally vociferous in its opposition to the proposals. Mrs. Margaret Jones has made the forum's concerns clear to the SRA, reflecting its unanimous vote on 30 November to oppose the SRA's plans. The forum is particularly concerned about the effect that the loss of a direct service from London will have on the De La Warr pavilion. The De La Warr will reopen next year, after an extensive refurbishment, as an international arts centre and the biggest contemporary art gallery in the south-east of England.
	It is estimated that 50 per cent. of its visitors from outside Bexhill will reach the De La Warr by train. In 2001, the De La Warr attracted 500,000 visitors, of whom 75,000 came directly from London. In 2005, the refurbished De La Warr is expected to attract more than 750,000 visitors, of whom 150,000 are projected to come from London. The De La Warr Charitable Trust told me that
	"we are preparing a programme of National Work to encourage people from London and the suburbs to visit. These are events and work that will not be seen in London. We aim to produce world class programmes for a national audience. Any disruption in transport would have a severe impact on our ability to attract a national audience."
	Imagine if Glyndebourne opera house, which successfully attracts a large audience who travel by train every year, had to tell opera goers taking the train at Victoria that they needed to change halfway through their journey. It would fundamentally undermine their ability to operate.
	We must not overlook the elderly population in Bexhill, who depend on the train service, especially its direct link to Gatwick airport. Bexhill has the second largest pensioner population in Britain and the highest proportion of over-80s in the south-east. The prospect of changing trains with suitcases and luggage would be a profound deterrent to those who do not wish to take the car to the airport.
	It is also vital when attracting new businesses into our area as part of the regeneration initiative that not only Bexhillians should enjoy direct rail access to Gatwick but foreign visitors landing at the airport should be able to enjoy direct rail access to Bexhill. The public transport policy officer at East Sussex county council rightly pointed out that the proposals are not only about cutting a direct link to London but proposed cuts to the volume of services. Pevensey Bay and Cooden Beach station would lose one service to London an hour, and the very existence of Collington and Normans Bay stations could be threatened.
	I should like efforts to be made to encourage more people off the roads and on to the trains. The proposals would have the opposite effect. The cuts, together with previous changes, have not happened anywhere else on the network on such a scale. Transport professionals have serious concerns about the proposed connection at either Eastbourne or Polegate. Previous promises about connecting trains from Brighton to Hove have not been kept and it is clear that a train coming along the coast would not wait for a delayed service from London, leaving Bexhillians who were travelling home absolutely stranded.
	I summarise by saying that these ill-thought-through and poorly researched proposals would have a devastating effect on Bexhill. They would drive more people on to the already crowded roads of East Sussex. Mr. David Getty, the president of the chamber of commerce and tourism in Bexhill, said:
	"The reduction in service levels resulting in the abolition of a direct rail link from Bexhill to Gatwick and London will seriously hinder attempts to regenerate business in Bexhill. At a time when the local public and private sectors are working closely together to secure investment for a range of regeneration initiatives their success is jeopardised by the decision to downgrade Bexhill to a town with no direct rail link to London.
	Major local employers in the fields of insurance and education, particularly those teaching English as a foreign language, will suffer through the loss of the direct link, particularly to those towns competing for this business which do have a direct link such as Eastbourne and Hastings"—
	and Brighton. He continues:
	"The roads around Bexhill are already congested and the effect of the proposed changes will be to send more commuters, theatre-goers and tourists"—
	and students—
	"onto the roads. They will not risk the uncertainty of changing trains at Eastbourne—where there are already regular instances of delays due to lack of connecting stock or drivers . . . they will simply travel by road to Polegate or Battle to join London trains from Eastbourne or Hastings respectively.
	The SRA has said that 'it cannot fund assistance towards regeneration'—no one is asking it to do so; but it should not be permitted to threaten regeneration without the clearest of compelling financial data. The SRA has not come close to meeting this basic requirement: it has been unable and unwilling to state how many people use the direct train under threat"
	using ill-thought-through numbers.
	The SRA proposals take no account of the projected growth in population of Bexhill, which will follow directly as a result of the Minister's historic announcement two weeks ago, nor of the projected growth in visitors to the area as our economy regenerates and tourism revives. The SRA proposals are simply a formula to run down our railway to a point where it could lose a critical mass of passengers. If that were allowed to happen, the inevitable logic of the SRA's arguments is that the line would be likely to close altogether in the years to come. The SRA, in a letter to me of 8 December, said:
	"We accept that changing trains will inconvenience through passengers and discourage people from making these journeys. We also accept your comments that this would have an adverse effect on the local economy."
	It went on to say that
	"the SRA is not responsible for prescribing a holistic provision of transport services for an area."
	If joined-up thinking on transport is not the remit of the Strategic Rail Authority one wonders why it bothers to include the word "strategic" in its name. Such thinking, however, is the responsibility of the Government, the Department for Transport and every transport Minister. I therefore make a plea to the Under-Secretary, who has shown good judgment to date. I urge her in good faith to intervene and direct the SRA to step back from these destructive proposals, and safeguard the benefits for Bexhill and the surrounding area, as promised by her historic decision two weeks ago.

Charlotte Atkins: I congratulate the hon. Member for Bexhill and Battle (Gregory Barker) on securing this debate, thus providing an opportunity for us to discuss rail services to Bexhill. I thank him, too, for his kind remarks about the approval of the link road a few days ago.
	Bexhill is currently served by the Brighton to Hastings stopping service, which runs at a frequency of two trains an hour for most of the day on Mondays to Saturdays. An hourly direct service to and from London Victoria runs seven days a week. It is also possible to travel to Ashford, destinations along the south coast and other London termini such as Charing Cross, Waterloo East and London Bridge by changing at Hastings, St. Leonards, Warrior Square and Brighton. At present, those services use a mixture of mark 1 slam-door rolling stock and modern air-conditioned rolling stock. Most of the older rolling stock will be replaced by the end of 2004, and all of it will be replaced by mid-2005. The performance of the services that serve Bexhill is measured by the public performance measure published by the Strategic Rail Authority in "National Rail Trends". In the past year, 81.8 per cent. of trains arrived at their destination at the time shown in the timetable or within five minutes of that time. By comparison, the figure was 84.6 per cent. in the previous year, and 84.5 per cent. for all London and south-east commuter service operators. The slightly lower level of performance this year, especially when compared with that of similar operators, can be attributed to the teething problems of the new rolling stock and the growing unreliability of the mark 1 slam-door trains, which are being replaced. Most of those teething problems have now been overcome, certainly in the operation of trains, although further work on heating and air conditioning systems is still needed. Clearly, that does not affect train performance, although it does affect quality and thus passenger satisfaction with train journeys. When all the new rolling stock is in service it is expected that train performance will improve.
	The SRA's Brighton main line route utilisation strategy clearly aims to improve the performance of train services and ensure that optimum use is made of available train and network capacity. We have set the SRA tight affordability constraints and it must demonstrate that any changes are financially robust. It proposes that one stopping train an hour between Brighton and Ore will call at Bexhill, and one fast train an hour from Brighton to Ashford will also call there. Two trains an hour will operate between London Victoria and Eastbourne. They will run up to ten minutes faster, but they will not serve Bexhill directly. Passengers from Bexhill who wished to travel to Gatwick airport, East Croydon and London Victoria would have to change at either Eastbourne or Polegate.
	The level of service from Hastings and St. Leonards to London Bridge, London Waterloo East and London Charing Cross via Tonbridge is not affected by the Brighton main line rail utilisation strategy proposals. The SRA accepts that changing trains will inconvenience through passengers and risks discouraging people from making their journeys by rail. It is, however, working on making the connections between the Ashford to Brighton and the Eastbourne to London train as seamless as possible. By changing at Polegate, passengers would not have to cross the footbridge. They would alight from the train, wait on the platform and board the following train. The direct train service from Bexhill to Lewes would be reduced to two trains an hour, rather than three, but the direct link to the county town would be retained.
	One of the SRA's reasons for reducing the train service east of Eastbourne is the low level of patronage. The figures for travel between Bexhill and London—both Charing Cross and Victoria—suggest that there are, on average, approximately eight people per train travelling in each direction from Bexhill to London. Some of those passengers are presumably going via St. Leonards, so the number using the Brighton line service to Victoria is fewer than eight per train. In total, about 12 people per train travel from stations between Eastbourne and Hastings to stations on the Brighton main line, so in practice those are the only people who will be inconvenienced by the SRA's proposals for changes to the service.

Gregory Barker: Does the Minister accept that average figures can often be misleading as to the pattern of travel? If she goes to Bexhill early in the morning and takes the 6.34 train, for example, she will find it packed with commuters, many of whom do not buy tickets, but buy season tickets in London and therefore do not show up in the figures that she quoted. I accept that on a wet Friday afternoon, very few people will be travelling on that link, but at peak times those trains are absolutely full.

Charlotte Atkins: I appreciate the point that the hon. Gentleman is making. I thought that he said that 12 people were travelling on that early train from Bexhill.

Gregory Barker: That is from Cooden Beach—one station. There are five stations along the coastal strip in my constituency, the principal one being Bexhill. The gentleman who wrote in travelled from Cooden Beach station, which is one of the minor stations that are threatened.

Charlotte Atkins: I thank the hon. Gentleman for clarifying that. If he wants to bring the point about season tickets into the equation, it may well help to boost the low usage figures. I appreciate his point that average figures obscure the reality of the journeys that individuals make, which may change from time to time, from season to season and from train to train, but the figures that I gave suggest that the SRA is right to consider the impact that the suggested change to the service will have on a relatively small number of people. If he has additional information or evidence, he should allow the SRA to see it.
	We understand that any direct service that is replaced by a connecting service might suffer a passenger reduction, but I think that the hon. Gentleman would agree that resources must be focused in the most effective way to improve the overall financial position of the railway. The proposals will also relieve congestion at Hastings station.
	One of the main recurring points relates to the effects of the Brighton main line route utilisation strategy proposals on the demography, economy and regeneration of Bexhill and Hastings. We are aware that significant regeneration efforts are being made—the hon. Gentleman mentioned the link road, where the issue of regeneration was clearly crucial and that the De La Warr pavilion is being reconstructed—to encourage significant numbers of visitors to travel to the area by train.
	It has also been mentioned that it is desirable that links to educational and arts establishments are provided and it has been suggested that there is the need for direct access to the transport and business hubs of Gatwick airport, Clapham Junction and East Croydon. Any route utilisation strategy is focused on improving performance and better use of track and train capacity, within the constraints of affordability. The SRA—this is reflected in its appraisal guidelines—examines only measures which might be taken to improve the efficiency and viability of the railway.

Gregory Barker: The argument about regeneration—the Minister knows well what Bexhill and Hastings face in terms of regeneration—can be deployed where roads are concerned, but rail is a much more environmentally sensitive form of transport and the regeneration argument, or wider arguments, cannot be deployed. A narrow, stand-alone, financial case must be made. Surely the same wider arguments that can be deployed in favour of building a road ought to be deployed in favour of rail.

Charlotte Atkins: Obviously, the regeneration effects of rail are significant, but there is a direct route from Hastings which, as I know from our discussions, is not too far from Bexhill. Such routes are available and many people will choose to use them. I do not underestimate the effect of the inconvenience for those passengers who use that route, but given that there are direct services from Hastings, it is not an impossible journey.
	The SRA met several local stakeholders affected by the Brighton main line route utilisation strategy proposals before the consultation document was launched. Those meetings were generally at the county council or regional assembly level. The SRA noted the apparent lack of information dissemination by some of those stakeholders, which it recognises as a problem, and that will be addressed directly with stakeholders in all future SRA work.
	We have given directions and guidance to the SRA to develop the capacity of the railway, both of the trains and the network, so that they are both utilised to the maximum. In doing so, it must have very strong regard to the cost-effectiveness and affordability of services. We are not seeking to close any stations or lines, but we are aiming to rationalise services, which may mean that some previously through services will now involve a change of trains. The SRA is working to ensure that those changes are as smooth and trouble-free for passengers as possible, as it and we are aware that some passengers are actively discouraged from using trains if they have to change. We hope that the increased punctuality and reliability of services and the reduction in journey times, even including the time taken to change trains, together with the new modern rolling stock fleet, will encourage existing passengers to continue to use trains and encourage others to do so.

Gregory Barker: The Minister rightly talks about encouraging passengers to use the train service, on which I agree. Why, then, has the SRA told me that it is precluded, when making its assumptions on future train use, from taking advantage of any forecast of increased growth? It is not allowed to take into account the planned homes that are to be built—nearly 2,000, thanks to the Minister's link road—or the additional hundreds of thousands of tourists who will come into the area to visit the De La Warr. The only figures that it is using in its financial model are historic figures, which incorporate a period when the De La Warr was closed.

Charlotte Atkins: On that detailed point, the best thing that I can do is write to the hon. Gentleman, which I am happy to do.
	The SRA aims to publish the final route utilisation strategy for the Brighton main line next spring, and I am sure that the hon. Gentleman will feed in both his comments and those of his constituents before that time.
	Question put and agreed to.
	Adjourned accordingly at sixteen minutes to Eight o'clock.